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What makes a will legal in Florida?

In Florida and most other states, anyone who is at least 18 years old and owns property can under law have a will. Many people might falsely believe that a will needs to be complicated to be legal. That’s not the case. There are things you should know, according to Florida statute, before you draft or change your will. This is especially true if you have a will, but are a new resident of Florida.

Under Florida statute 732.502, Every will must be in writing. It also must include:

  • The signature of the person, also knows as the testator, who created it. The signature needs to be at the end, or it must be subscribed at the end by another person in the testator’s presence.
  • At least two witnesses who can attest to the signature.
  • The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

If you believe your estate is simple, with few assets or instructions to lay out, a handwritten will is an option. It must be completely in your own handwriting, signed and dated. It must also be legible and be clear in its instructions: State who you are leaving your belongings to and so forth. It doesn’t have to be notarized or signed by a witness, however, it can be invalidated if any portion of it is typed, appears unclear or doesn’t follow the rules laid out by law.

Florida law does not recognizes what is called a nuncupative will. It is made verbally in the presence of witnesses, often when a person is dying and a written will is not an option.

If your estate is large, think about a more formal, complex will to ensure your wishes are met.

Regardless of which way you go, you should seek the advice of a qualified estate planning attorney with knowledge of California law to ensure your wishes are carried out the way you want. If your will isn’t recognized legally, your estate could end up in probate. Probate often causes hurt feelings and financial headaches for the loved ones you’ve left behind.

Also, If you ever want to change your will or disinherit someone, an attorney’s assistance is important to see it through.Even smaller estates can have complexities foreseeable only by an experienced attorney.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

 

What shouldn’t I include in my will?

Everyone, no matter their age, should have a thorough estate plan in place to protect their loved ones after they are gone. Some studies have shown that 55 percent of Americans don’t have a will in place by the time they die. That leaves families vulnerable to stressful and costly legal battles.

If you have a will as part of your estate plan, good for you. You’ve taken the most important step you can take to plan your family’s future. But believe it or not, there are some things you shouldn’t include in your will, according to estate planning attorneys and financial experts.

Don’t leave your funeral wishes in your will. The truth is, most final affairs and settling of the estate begins after the funeral has ended and the out-of-towners have returned home. If you have ideas of what you want your funeral to be like, or how you want to be buried or cremated, don’t leave them in the will. It might be too late and your family members could feel as though they have let you down. Instead, talk to your spouse, children or other close family members and friends about your wishes. You can even give them or the chosen executor of your estate a written outline of how you’d like to be honored in a funeral or memorial service and whether you prefer to be buried or cremated.

Don’t leave anything to a pet. Pets are family, no question. But in the eyes of Florida lawmakers, pets cannot own property. Instead, choose a person you’d like to care for your pet if you die, along with money to care for your dog, cat, bunny or whatever animal you own and love.

Don’t leave property you co-own in a will. If you own property in a joint tenancy your share of that property automatically belongs to the surviving co-owner after you die. A will provision leaving your share would have no effect unless the other co-owner dies when you do.

Don’t leave property you’ve placed in a trust, including a revocable trust (which is a trust that can be modified before you die if your circumstances change). Property that is put into a trust passes automatically to the beneficiary, such as a child, that you have already chosen. It’s outlined in a trust document, so it cannot be passed on as property in a will.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Valid challenges to a Florida will

In order to challenge a Florida will, it may be necessary to prove that the person making the will — the testator — lacked what is known as testamentary capacity. In other words, that the person making the will lacked the ability to understand the consequences the will at the time it was created.

Adults over the age of 18 are presumed to have testamentary capacity. Some of the ways to prove a lack of testamentary capacity include:

The testator was senile, suffering from dementia, had a substance abuse problem or was mentally ill at the time the will was drafted and signed.

The testator did not understand the value and extent of his or her property.

The testator does not have a close relationship with the beneficiaries of the will.

The testator does not understand what the provisions in the will mean.

The testator does not know the value of the property included in the will.

Additional challenges to the validity of a Florida will can include:

Undue influence, forgery or fraud. It is not uncommon for challenges to a will to charge that the will was procured by undue influence, forgery or fraud. This is especially true if the testator is elderly when the will is created.

Discovery of a newer will. If a newer will is discovered, it can trump an older will. If you are updating your will, it is important to state that it invalidates all previous wills and the old will should be destroyed.

Witnesses. Florida law requires that a will be signed in the presence of two independent witnesses who are not named in the will as beneficiaries. If a will lacks the necessary number of witnesses, or is witnessed by someone who stands to benefit from the provisions in the will, it may be found invalid.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Do I need a will?

When your life changes, your will needs to change as well. You can do this by either modifying your will with a codicil, or by creating a new will. To eliminate any possibilities for confusion, you should consider drawing a new will when you experience a big life change such as:

Divorce – In most states, a divorce decree will nullify any gift made to a former spouse; however, to ensure your assets go where you want them to go, you should draw up a new will following a divorce.

Marriage – No matter if it’s your first marriage or your fourth, you and your new spouse should both create a new will. If there are now stepchildren you want added as beneficiaries, you will need to provide for them by name in your will, unless they have been adopted, in which case they will be considered your legal children.

Birth – Your will should include the establishment of a guardian for any minor children.

Death – If you have named someone as a beneficiary in your will and they before you do, a new will should be created so the assets can be redistributed.

Reviewing your will when life changes – such as a birth, a death, or divorce – will help ensure your will is valid and does what you intend for it to do. Here are some other things you can do to ensure your Florida will is valid:

Make sure it can be found. A common mistake many people make is to lock away their will in a bank safety deposit box, not realizing that it will require a court order to open that box and your loved ones will be without the necessary documents to open probate.

Be careful about who you choose as executor. Naturally you want to name someone who is responsible, but be sure they actually want the job before you name them. In addition, name a second person to serve in case your first choice is unavailable.

Avoid contradictions in estate planning documents. You want to be sure your will doesn’t contradict the choices you have already made for those listed on beneficiary forms for your life insurance policy, retirement accounts, etc.

Name a back-up guardian. One of the most important functions of a will is naming a guardian for minor children. But what if you only named one person, and that person couldn’t take on the responsibility? Naming a second choice for guardian will bypass this potential problem.

Be specific. If you want to disinherit someone, you must state that specifically in your will. In addition, if you have gotten divorced and remarried but have children from your first marriage, you will want to make provisions for both your current spouse and your children from the first marriage. Not doing so could leave your children unintentionally disinherited.

Seek professional guidance. While there are many online options for creating a will, these are not tailored to your specific needs. Seek professional guidance from a qualified estate planning attorney so you can avoid common mistakes that could invalidate your will.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Do All Florida Wills Have to Go Through Probate?

Do All Florida Wills Have to Go Through Probate?Most people think that if somebody dies with a will, getting their inheritance will be fairly simple and easy. However, if a person dies in Florida with or without a valid will, the estate still may be required to go through probate depending upon how particular assets are titled.

Probate is the court-supervised method by which the will is validated, heirs are determined, debts are paid and assets are distributed. If no will exists – also known as dying “intestate” – probate is necessary for a judge to determine who will receive the deceased person’s assets under Florida Law unless they are titled in a probate avoidance format.

While Florida law clearly states that a surviving spouse with no children will be the sole beneficiary if no will exists, things can get very complicated after that. Even if there is a will, the court still needs to ensure that the will is valid and that there is no conflict between the will and Florida law, especially when homestead property is involved.

Either way, you will need the assistance of a skilled attorney to help navigate this process since the State of Florida does not allow do-it-yourself probate.

When you are already grieving the death of a family member, the complicated demands of the Florida probate process can be overwhelming. This is why the easiest course of action for your family is to consult with a probate attorney, who can help you navigate this process so you don’t have to go it alone.

The Estate, Trust & Elder Law Firm, P.L., provides attorney services ranging from estate planning for young families to advanced and crisis long-term care for seniors. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.