Last Will and Testament Florida

How To Pass Your Legacy On To Your Loved Ones With a Florida Last Will and Testament

What is a Florida Last Will and Testament?

A Florida last will and testament is one of the most commonly known estate planning documents people use to pass their money and property to their loved ones after they pass away. Having a will in place helps you make sure that your family receives your assets according to your wishes. If you don’t have a will in place, Florida law will dictate who gets your assets. In this article, we will dive deeper into the benefits of a Florida last will and testament and how it can protect your family. 

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Who Needs a Florida Last Will and Testament?

If any of the following apply to you, you should consider a Florida will:

  • Have children or grandchildren
  • Own real estate
  • Have money or property you would like to pass on to your kids or grandchildren
  • Married, but haven’t created or modified a pre-existing last will and testament since your wedding
  • Divorced, but haven’t created or modified a pre-existing last will and testament since your divorce
    Have precious family heirlooms

What Happens if You Die Without a Florida Last Will and Testament?

Estate planning is incredibly important, but a lot of people don’t want to think about passing away. While it can be hard to think about leaving your loved ones behind, your family could be put in a very difficult situation during a time of mourning if you don’t have a Florida last will and testament in place.

The Court Will Decide Who Gets Your Assets

If you pass away without a last will and testament in Florida, your estate is considered intestate. This means that the court will decide, based on Florida intestacy law, who will receive all of your assets after you pass away with no input from you. If you have family members you don’t want receiving any of your assets, this situation can be less than ideal.

The major benefit of a Florida last will and testament is that it tells the court exactly who you want to receive your money and property and how much each of them should get. Additionally, you can appoint someone you trust to make sure that your assets are distributed to your family members according to your wishes. This person is called your personal representative (executor). We will talk more about your personal representative and their importance to your Florida will later in this article.

Potential Family Infighting

Another drawback of dying without a Florida will is that it can cause infighting between family members. Without a last will and testament in Florida, the court will decide who is entitled to your estate. Family members that believed they were entitled to a share of your money and property may be left without anything. This can cause animosity and infighting between family members. One of the main reasons people get a Florida last will and testament is to make sure their wishes are documented to prevent damaging family relationships.

The Court Decide Who Will Take Care Of Your Children

If you have minor children under the age of 18, a Florida will allows you to designate who should be their legal guardian if you pass away. If you don’t have a will in Florida, the court will have to decide who has the legal right to be the guardian of your children. Maybe you have relatives you would not entrust with the care of your kids. To make sure your children are raised by people you trust in a loving home, it is best to prepare a Florida last will and testament ahead of time.

What are the Benefits of a Florida Last Will and Testament?

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A Florida last will and testament is one of the simplest and most popular ways of passing your legacy on to your loved ones after you pass away. You can use a Florida will to:

  • Leave your money, assets, and property to your family members or other organizations that you care about
  • Name guardians for any minor children under the age of 18
  • Select a person you trust to manage any of the property you leave for your children
  • Choose a personal representative who will be responsible for settling your estate and making sure that your assets are distributed to your loved ones according to your wishes

Leave an Inheritance for Your Loved Ones

When people think of creating a will in Florida, they think about leaving an inheritance in the form of money and property behind for their loved ones. In Florida, these are known as bequests. Bequests are the gifts that you want to pass to your family members, also known as your beneficiaries. A Florida last will and testament allows you to make bequests of your cash, real property, and personal property.

You will want to be very specific as to who you want to receive these gifts and how much they should receive. This will help prevent confusion and it will help your personal representative distribute your property. Additionally, clearly stating your wishes in your Florida will can help prevent family infighting after you pass away.

Name Guardians for Your Children

Another major benefit of a will in Florida is that it allows you to select a guardian for your minor children. This ensures that someone you trust will raise your children in a loving home. Additionally, you can assign a guardian to manage any money and property that you leave behind for your children.

Having this decision documented in your Florida last will and testament can prevent different sides of the family from fighting over who should have the right to raise your children. Lastly, it can prevent your children from being raised by people you don’t want raising your kids. Say for instance a toxic in-law.

Appoint Someone You Trust as Your Personal Representative

After you pass away, how do you ensure that your estate is probated properly and your assets are distributed to your beneficiaries according to your wishes? You assign a personal representative that you trust in your Florida last will and testament.

Once you pass away, your personal representative will be responsible for probating your estate, settling any remaining debts to creditors, and distributing your assets to your beneficiaries according to your wishes. Selecting your personal representative is a big deal because they will have a legal duty to administer your probate estate according to Florida law. If the personal representative mismanages your estate, they may be liable to your beneficiaries.

What are the Responsibilities of the Personal Representative?

So, what exactly is required of your personal representative?

According to the Florida Bar, a personal representative in Florida must do the following:

  • Identify, gather, value and safeguard the decedent’s probate assets.
  • Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
  • Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
  • Object to improper claims, and defend suits brought on such claims.
  • Pay valid claims.
  • File tax returns and pay any taxes properly due.
    Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
  • Pay expenses of administering the probate estate.
  • Pay statutory amounts to the decedent’s surviving spouse or family.
  • Distribute probate assets to beneficiaries.
  • Close the probate estate.

As you can see, being the personal representative of an estate is a lot of work. In order to help with the responsibility, your personal representative can hire a Florida probate attorney to help them with the process. In fact, in most cases, Florida law requires the assistance of a probate attorney to probate your estate. Before assigning a personal representative, it is a good idea to first check with the person you have in mind to see if they feel comfortable serving in the role.

What Assets Can Be Transferred with a Florida Last Will and Testament?

Not all assets are transferred through your Florida will after you die. Your Florida last will and testament only transfers assets that are titled individually under your name. These are known as probate assets. Probate assets are owned by you at the time of your death, but don’t automatically transfer to someone else after you die.

Assets that automatically transfer after your death typically have a beneficiary designation. Examples include:

  • Life insurance policies payable directly to the beneficiary
  • Retirement accounts with a beneficiary listed
  • Jointly held property with rights of survivorship

If you have any of these, document them and consult with an experienced estate planning attorney. The way your property is transferred can have an impact on taxes and also the amount of time it takes for your assets to transfer to your beneficiaries. An estate planning attorney will help you understand your options and properly plan your Florida last will and testament.

Does a Florida Last Will and Testament Avoid Probate Court?

No. A Florida last will and testament is your ticket to probate court. After you pass away, your personal representative will be responsible for probating your estate. In most cases, Florida law requires the assistance of a probate attorney to probate your estate.

Probate can be a long and expensive process, which is why a lot of people wish to avoid it. The best way to avoid probate is with a Florida revocable living trust. Much like a will, a revocable living trust passes your assets on to your loved ones after you die. However, in addition to probate avoidance, a revocable living trust provides benefits that a Florida last will and testament does not. Additional benefits of a living trust include:

  • Pass your money, property, and assets efficiently to your family after you pass away
  • Avoid the long, stressful, and expensive Florida probate court process
  • Protect and manage your assets if you become incapacitated without having to go to Florida guardianship court
  • Keep control of your finances after you die
  • Ensure the contents of your trust and the transfer of your assets remain private
  • Name someone you trust to distribute your assets according to your wishes after you pass away
  • Change or revoke the estate planning document at any point while you are still alive

What are the Signing Requirements for a Florida Last Will and Testament?

To make your last will and testament legally binding in Florida, you need to make sure you follow the proper signing requirements. If you don’t follow the proper requirements, your Florida will may be deemed invalid. For a Florida will to be considered valid:

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  • You, the testator, must be 18 years old or older and of sound mind at the time the will was executed
  • You must sign your will in front of two witnesses
  • Your two witnesses must sign your will in front of you and each other

Does Your Florida Will Need to be Notarized?

Technically, a Florida last will and testament does not need to be notarized to be considered legal. However, getting your Florida will notarized makes it a self-proving will. The major benefit of making your will a self proving will is that it speeds up the probate process because the court can accept your Florida will without having to contact the witnesses who signed it.

In order to make your will self-proving, you and your two witnesses will need to go to a notary and sign an affidavit that proves who you are and confirms that you all knew you were signing the will. Oftentimes if you have an attorney draft your Florida will for you, they should be able to provide this service for you.

Can You Revoke or Change Your Florida Last Will and Testament?

Yes. In the state of Florida, you can revoke or change your will at any time.
If you want to make changes to your Florida last will and testament, it is usually best to revoke it and make a new one, although it is possible to amend your existing will. If you need to make changes, you should consult with an attorney in order to finalize any changes and ensure that the changes are legally binding.

What Should You Do With Your Florida Last Will and Testament Once It’s Complete?

Once you have signed your Florida last will and testament, all you need to do is store it in a safe place. You should also let your personal representative know where they can find your will as they will be responsible for probating your estate after you pass. 

Are There Other Documents You Should Consider In Addition to a Florida Will?

Unlike revocable living trust, a Florida last will and testament only becomes effective after you pass away. As a result, it does not allow you to plan for situations where you may become incapacitated. It’s a common misconception that estate planning is only planning for your death. Comprehensive estate planning also covers planning for incapacity. That’s because it is very common for people to become incapacitated and unable to communicate prior to passing away.

If you become incapacitated without the proper documents in place, your family may have to petition the court just to access your finances and make medical decisions on your behalf. This can add more complexity during an already stressful situation. In order to plan for incapacity, you should consider the following documents to supplement your Florida last will and testament:

Power of Attorney

If you become incapacitated, this document will be really helpful when it comes to paying your bills and protecting your assets. Without this form, your family may not have access to much needed funds to pay your bills. In order to access your finances, they may have to open a guardianship proceeding in court. This could cost time and additional money if they need to hire an attorney. The power of attorney will no longer be valid after you pass away.

Health Care Surrogate

This document allows you to designate a person you trust to make health care decisions on your behalf if you become incapacitated and can no longer do so yourself. Included in this document is the power to decide when to withdraw medical procedures.

Living Will

A living will is a written document that specifies what life-prolonging procedures you may want if you can’t communicate. Usually your living will supplements your health care surrogate. Think of the living will as additional instructions for your health care surrogate to follow.

Pre-Need Guardian Designation

This document allows you to designate a person you trust to be appointed as the guardian over you and/or over your children if you become incapacitated or pass away. If you don’t designate a guardian ahead of time, the court will do so if it is necessary.

Do You Need A Lawyer To Make Your Florida Last Will and Testament?

There is no such thing as a “simple will.” Even an estate that is perceived to be “small” can have complexities that only a trained attorney would be able to identify. Will, trust, estate, and probate law are very complicated. It involves making decisions that need professional judgement that can only be gained by years of training and experience. If your will is drafted improperly, the court may consider it invalid after you pass away. This is why you shouldn’t rely on a do-it-yourself option. While it may seem cheaper on the surface, it could end up costing your estate much more money than the cost of having a Florida last will and testament drafted by an attorney.

It is a common misconception that all attorneys practice the same type of law. This couldn’t be further from the truth. Just like doctors specialize in certain practices of medicine, lawyers focus their practices on specific areas of law. When drafting a Florida last will and testament, you should seek the expertise of an experienced Florida will attorney, sometimes known as an estate planning attorney or probate attorney.

An attorney who focuses their practice on estate planning and probate can make sure that your estate plan is legally binding and will act the way it is intended after you pass away. Additionally, the attorney has the experience necessary to coordinate with other professionals who may be required throughout the process such as investment professionals, tax accountants, and insurance specialists.

Conclusion on Florida Last Will and Testament

A Florida last will and testament is one of the most commonly used estate planning documents people use to pass their money and property to their loved ones after they pass away. A Florida last will and testament can help you achieve the following:

  • Leave your money, assets, and property to your family members or other organizations that you care about
  • Name guardians for any minor children under the age of 18
  • Select a person you trust to manage any of the property you leave for your children
  • Choose a personal representative who will be responsible for settling your estate and making sure that your assets are distributed to your loved ones according to your wishes

A Florida last will and testament is one of the most important documents you will create because it is responsible for passing your lifetime accumulation of assets to your loved ones according to your wishes. As a result, you should work with an experienced will attorney to make sure it is drafted properly and is legally binding. If you are interested in drafting a Florida last will and testament and would like to speak with an experienced attorney, please call us today at Rochester Law Center at 248-613-0007. Over the past decade, we’ve helped 1,000s of families estate plan.

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