Last Will and Testament
Last Will and Testament
A Last Will and Testament (“will”) is a document that determines who will receive your assets upon your death. Your will only controls who will inherit assets held in your name alone at the time of death. Bank accounts, real estate, brokerage accounts that are held as joint tenants with rights of survivorship do not fall within the control of the will. Property held as tenants by the entireties, with a spouse, does not fall within the control of the will. Further, life insurance and Individual Retirement Accounts with named beneficiaries pass directly to the people named on the beneficiary designations form. In those cases, your will does not determine who will own the assets, as your named beneficiaries in those accounts receive the assets in those accounts. A different sets of laws govern the above assets.
Florida Law requires the person who seeks to have a will (“testator”) be at least 18 years old and competent. The will must be a written document. Verbal wills are not valid. The will must be signed by the testator. There must be two witnesses who signs that they witnessed the will. The witnesses must sign at the same time the testator signs it. Of note there are special rules that allow the testator to sign the will even when physically incapable. Provisions in a will can be changed at any time during your life. This change to the will is called a “codicil”. However, the will becomes final up death and cannot be changed by others. Even if all those rules are followed, the will has no legal force until it is proved valid in probate court.
Without a separate marital agreement, you cannot disinherit your spouse in your will. However, you can disinherit your children if you state it in your will. While you can disinherit your children, you cannot disinherit minor children from inheriting your homestead.
A will can also name a guardian to care for your minor children. The will can name a trustee if you create a trust (“testamentary trust”). You can create one or more trusts to manage property, specify when distributions of assets may be made, and who will be the beneficiary the assets.
If you do not have a valid will, Florida Law has rules directing who will receive your property. They are called the rules of intestacy. The rules of intestacy rarely serve as an efficient, cost-effective way to pass property to others. The rules of intestacy will probably not accomplish your wishes, which is why you need a valid will.