Last Will and Testament
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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 set of laws govern the above assets. Get a knowledgeable Jacksonville last will and testament lawyer who can help you understand this complicated process.
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 sign 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 upon 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.
How to Write a Last Will & Testament in Florida
While the goal of a will is straightforward, the process of drafting a will is quite nuanced. Creating a will requires a testator to thoroughly review their assets and think hard about what they want their legacy to look like. Even a seemingly small mistake can have drastic consequences. Aside from containing all the legal requirements, a will should also include certain terms to ensure that it is valid and accomplishes the testator’s goals.
Before drafting a will, it is important that the testator consider certain things to make sure they have all the information they need when they sit down to write the will. Doing so will prevent any oversights that could interfere with the validity or effectiveness of the will.
The Testator’s Information
At the top of the document, a will should include the testator’s name and the county where they reside.
The Personal Representative’s Information
The Personal Representative (some states refer to that role as “executor”) is the person who will carry out the terms of the will. A testator must include the name of the Personal Representative and typically the name of a successor if they are unable or unwilling to serve in that role.
The Beneficiaries’ Information
One of the primary purposes of a will is to distribute property to the named beneficiaries. Thus, a will must contain the names of all beneficiaries, including children. It is a good idea to include the date of birth for minors and the beneficiaries’ relationship to the testator.
A Description of the Testator’s Assets
The will does not include an inventory of assets, as such will inevitably change during the testator’s lifetime. However, specific gifts of assets must be listed. During the interview process, the testator should create a detailed description of their assets in order for the attorney to best advise how the property should pass to the beneficiaries. When listing assets, it is important to include them all, including:
- Real estate
- Bank accounts
- Digital assets
- Investment accounts
- Life insurance policies
- Intellectual property
- Business royalties
- Business interests
- Other family heirlooms and personal property
In recent years, people have come to own digital assets. For those with digital assets, such as cryptocurrency, photos, domain names, online betting accounts, or online video channels, be sure to clearly explain the asset, describe where it is located, and provide the necessary login information to access the assets. Too often, executors have a difficult time locating digital assets—or overlook these assets altogether. This detailed list should be kept in a safe place for the Personal Representative to access, as they would otherwise likely not be aware of assets owned.
Explain the Testator’s Intentions
The next step in the interview process and for insertion in the will is for the testator to outline what each of their beneficiaries will receive. While there are many ways to do this, the easiest is for the testator to leave a certain percentage to each beneficiary.
However, this may not accomplish a testator’s goals, especially if there are many beneficiaries. In such cases, a testator will likely bequeath specific assets to beneficiaries.
While clarity is essential in every part of a will, it is especially crucial when describing what each beneficiary should receive. When distributing property after the testator’s death, the court will rely solely on the will. If there are any ambiguities or conflicting terms, this could lead to a process called “reformation,” in which the court inserts terms into a will based on what it believes was the testator’s intent.
It is also important to think about what will happen if one of the beneficiaries in the will dies before the testator. For example, should the assets pass on to the deceased beneficiary’s heirs or be distributed to the remaining beneficiaries named in the testator’s will?
Consider Appointing a Guardian for Any Minor Children
Those with minor children should designate a person to serve as their child’s legal guardian. If a parent dies without naming a guardian, the court will appoint one. While the court may appoint a close family member, that is not always the case. The only way to know for certain for the judge to know who you wish to serve as guardian is to name them in advance in the will.
Consider a Special Needs Trust
For testators who have loved ones’ special needs or otherwise rely (or may rely on in the future) on needs-based government benefits, a special needs trust may be a good idea. A special needs trust is a type of trust that provides for the ongoing care of someone with special needs without jeopardizing their eligibility for certain government benefits.
Specify Any Disinherited Parties
If the testator wishes to disinherit a beneficiary who would otherwise be entitled to an intestate share of the estate (adult children, for example) this should be made clear in the will. While it looks harsh on paper, the will must specifically state that such person is disinherited and is to receive no benefit from the estate.
Provide Witness Information
All Florida wills must be witnessed by at least two people and notarized at the end of the document after the testator’s signature. The witness must sign at the end and include their name, address, and telephone number.
Of course, these steps can help get you started, but chances are, you will encounter questions along the way. That’s normal. The Florida estate planning process is complex, and most families work with an experienced lawyer to provide much-needed assistance. If you have questions about drafting a will, reach out to the Preddy Law Firm, P.A. for immediate assistance. Rose Marie Preddy has been helping individuals and families create effective, comprehensive estate plans for more than 25 years, and we are happy to answer whatever questions you have. As a full-service Florida estate planning law firm, we also handle related matters, such as probate, asset protection, guardianship, tax planning, and more.
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.
Contact a Proven Jacksonville Last Will and Testament Attorney Today
Make the decision while you still can and remove the burden of that decision from your loved ones. Consult a trusted Jacksonville last will and testament attorney today and draft the best will for you and your family. Let us help you in every step of the process. Call us directly or contact us online to set up an appointment.