Estate planning and will drafting can seem daunting and complex. We hope these answers to frequently asked questions about wills can help.
If you need any legal advice or have queries that aren’t covered in these frequently asked questions, feel free to contact our estate planning attorneys today for a free consultation.
What Is a Will?
- A will (or ‘last will and testament’), is a legally binding document that declares how an individual wants their estate and personal property to be distributed after their death.
- A will can also contain information on decisions such as the guardianship of surviving minor children and provisions for any pets.
- Wills are considered the most essential part of any estate plan and will make the distributions of their estate far easier.
What Is The Difference Between a Living Will and a Last Will?
- A last will is used to define what should happen after death.
- A living will can be used to define what should happen while you’re still alive but incapacitated – such as end-of-life care, medical preference and life support decisions.
What Happens If You Die Without a Will?
- If you die without a will (or a valid will), then your money, assets and personal property will be distributed via Florida’s intestate succession laws.
- These laws will share the estate in order of priority (Surviving spouse, adult children, followed by close and trusted family members).
- Without a will, it means you will have no control over what happens to your estate and it may be distributed to people you don’t want it to.
- If you die without a will, the guardianship of your children will also be left to the courts. So, your children could end up living with people that you would ordinarily not pick.
- A will is the only way to ensure your intentions and wishes are followed post-death.
Do I Need a Will?
It is advised that every adult creates a will, regardless of age. The only reason people do not usually create a will is that planning for death is far from enjoyable.
However, it is even more important that you create a will if you:
- Are a parent with minor children
- Have a disabled child
- Are married
- Have a complicated or high-value estate
- Own a pet
- Own multiple assets or properties
- Have children from different partners.
- You have previously been divorced or remarried.
What Happens If a Person Dies with a Will?
If a deceased person did not have a will, then their estate will be distributed in accordance with the probate court and per the terms and instructions they laid out in their will.
What Makes a Will Valid or Not Valid?
When someone with a will passes away, the probate court will need to prove their will before it can be followed. This means ensuring that it is ‘valid’. It is done to ensure that no foul play had an impact on its creation.
For a will to be valid in Florida, it must:
- Be created by an individual aged 18 years old or more, or an emancipated minor.
- Be created by someone of ‘Sound Mind’.
- Signed in the presence of at least two competent witnesses.
- Signed by the witnesses, each in the presence of the creator and the other witnesses.
- Drafted and signed free and voluntarily, not under the influence of improper persuasion of someone else.
Can You Sign a Will Remotely?
Since July 2020 and COVID-19, Florida has allowed for the use of electronic wills, signed and witnessed remotely. However, you should ask your Florida estate planning attorney to ensure this rule is still present and the time of reading, and to ensure you sign it remotely correctly.
Who Should Be a Witness of a Will in Florida?
In Florida, anyone of sound mind can serve as a witness to a will’s signing. However, estate planning attorneys advise that you use ‘disinterested’ witnesses – such as people who have no interest or attachment to the estate or family. This can remove any risk of the witnesses being accused of foul play.
Do You Need to Notarize Your Will in Florida?
Florida law does not currently require you to notarize a will.
However, a notary is required to make the will ‘self-proofing’. Self-proving a will proves that the will is valid, without the need for it to go through probate court, which can speed up the estate distribution process considerably.
In Florida, a self-proving requires the witnesses to sign a self-proving affidavit and the will itself. The affidavit must then be notarized. You can contact your estate planning attorney for legal counsel to ensure this is completed correctly.
What Does ‘Sound Mind’ Mean?
When someone is ‘of sound mind’ it means they have the sufficient mental capacity to understand their actions.
- They understand what a will is, what is achieved and why they’re making one.
- They understand the relationship between themselves and others they include in the will.
- They understand what real estate, personal property and assets they own.
Is There a Minimum Value of Assets Required to Write a Will?
No. Many people think wills are only for rich families with houses and many cars. This isn’t true.
Anyone can create a will, regardless of if they own $10 or $10 million. A will is also about far more than just finances; for example, it can include guardian intentions for minor children.
What Is a Personal Representative of a Will?
- An executor (or ‘personal representative’) is the individual responsible for managing your estate and following your wishes stated in your will after you pass away.
- You can state in your will the person you would like to be your personal representative
Who Can Be The Personal Representative of a Will in Florida?
In Florida, the personal representative or executor must be:
- At least 18 years old.
- Mentally and physically capable of performing their duties.
- Never convicted of a felony.
- Be a Florida resident, or;
- Related to you by blood, adoption or marriage.
If you wish to name a personal representative who lives outside of Florida, then you should speak to an estate planning lawyer.
It is advised that you pick someone you can trust, who is competent enough to handle your estate quickly and avoids causing family dramas and tensions.
What Is a Beneficiary in a Will?
A beneficiary is a person you name in your will to receive a share of the estate or pre-defined assets or property when you pass away.
Who Can Be Named as a Beneficiary in a Will?
- Anyone can be named as a beneficiary in your will. However, careful thinking should be given to ensure that children, relatives and friends are not upset and that your priorities are followed.
- An estate planning attorney can help you determine who should be named as a beneficiary and consider whether it would be more optimal to create a living trust.
- You should think of: your spouse, children, grandchildren, parents and close friends.
What Property Does Not Pass via a Will?
A will does not affect property and assets that would pass to others by contract or operation of law. For example:
- Bank accounts
- Brokerage or investment accounts
- Retirement accounts and pension plans
- A life insurance policy.
Read Related: Things You Should Never Put in a Will
Should I Make a Copy of My Will?
You should have one signed and witnessed copy of your will.
However, you can give an unsigned copy to those that you trust, such as your spouse, your children, your personal representative and your estate planning attorney. Always ensure everyone has the same updated version.
Read related: Where Should You Store Estate Planning Documents?
When Should You Update Your Will?
You should update your will upon important events or changes in your life or family, such as:
- Marital status changes.
- Real property sales or acquisitions.
- You have new children.
- A child dies or leaves.
- You move to a different state.
- Any of your beneficiaries die.
- The person you wanted to be the guardian for minor children is no longer able (such as if they are an incapacitated person).
- The personal representative is no longer able to serve.
- You change your mind.
- A witness dies or is no longer competent.
Do I Need a Lawyer to Make a Will?
You are not obliged to use a lawyer to draft a will. It is entirely possible to create a will yourself.
However, it is advised that those with complicated or wealthy estates contact an estate planning lawyer as they will ensure your estate is not only water-tight from claims and accusations but also optimal.
For example, you may benefit from creating a living trust and placing assets in that.
Can I Create a Will with a DIY Online Will Creator?
It is not advised that you use a DIY online will creator or will template, especially if you have a complicated or highly valuable estate. Online will creators won’t consider optimal alternative estate planning techniques and are prone to be found invalid later on. Instead, contact an estate planning lawyer.
Contact an Estate Planning Attorney Today
We hope these frequently asked questions about wills has helped you. If you’re struggling to plan your estate or need any professional advice, then our experienced Florida estate planning attorneys can help.
We regularly help Florida residents with proper planning for wills and living trusts that are water-tight, free from probate complications and in the best interests of their families.
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced estate planning attorneys, they can help you create a will or trust.