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Top Six Questions on Last Will & Testaments

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March 19th, 2021

Posted in Estate & Personal Planning

What is a Will?

A Last Will and Testament (often just called a “will”) is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida:

  • The maker of the will (called the testator) must be at least 18 years old.
  • The testator must be of sound mind at the time the will is signed.
  • The will must be written.
  • The will must be witnessed and notarized in the special manner provided by law.
  • It is necessary to follow exactly the formalities required for the execution of a will.
  • To be effective, the will must be proved in and allowed by the probate court.

Does a Will avoid Probate?

No, a will does not avoid probate.  Wills are, however, very economical and effective at making sure that a person’s assets are distributed according to his or her wishes. That being said, we believe it is important to seek the advice of a professional that regularly practices in the area of estate planning to ensure that your desires are properly documented and your plan of action is put into place according to your wishes.

Does a Will increase Probate expenses?

No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

What can be accomplished with a Will?

  • You decide who gets your property instead of the law making the choice for you.
  • You may name the personal representative (executor) of your estate as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate and may be either an individual or a bank or trust company, subject to certain limitations.
  • A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Through such a trust, minors can be cared for without the expense of proceedings for guardianship of property.
  • Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
  • You may make gifts, effective at or after your death, to charity.
  • You can decide who bears any tax burden, rather than the law making that decision.
  • You can appoint a guardian for minor children.

What happens if there is no Will?

If you die without a will (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.

When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probate administration may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.

Is my Will from another state still Valid in Florida?

Maybe. If it is determined that your will is valid in Florida, that does not mean that it will be adhered to as you expect or intended. Differences in Florida’s laws could affect how it is interpreted.

If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

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