To begin, if you die without a will, then you die “intestate” and that is not a good way to leave your family. If you die “intestate,” then the bulk of your assets and property will be distributed to your heirs according to a harsh “formula fixed by law” by a trial court.[i] Since you are gone and have not left the court any specialized written instructions, the judge is bound to follow the rigid formula outlined in the statute. The court cannot consider what you may have wanted to do with your property before you died.
Only a validly executed, written will can avoid “intestacy” and protect your final wishes, assets, and property. In this instance, form absolutely matters over substance. For obvious reasons involving fraud, Florida does not recognize handwritten and/or unwitnessed wills.
Additionally, if you pass without any heirs (which is rare), then your property escheats (or is given) to the state.[ii]
On the other hand, if you die having created a valid will, then you die “testate” (or with a will). With limited rules, the creation of a valid will allows you to absolutely control how you want your property disposed of and to whom. Sadly, an estimated 60 percent or higher of people die without any estate plan which includes a will and have no say in the distribution of their property and assets, or who will be the guardian for their children.[iii] It does not have to be this way with a little planning and forethought.[iv]
There are a few simple requirements for a will to be valid in Florida.[v]
The person making the will is referred to as the testator (or testatrix if it is a woman). The testator must be 18 years old or older.[vi] The testator must be of sound mind.[vii] The will must be in writing.[viii] The will must be witnessed by two (2) people. The witnesses must also sign the will as witnesses.[ix] The will must be dated as to when it was created and signed. The name of the executor/executrix (otherwise referred to as the personal representative)[x] of your will. The PR is the person who will go before the court and probate the will. Probate the will means the court process of marshalling all your assets, paying your obligations and debts, and disposing of your property and assets according to your directions in the will. The final requirement is that you must list one substantive provision in the will.
These are all the necessary components of a valid will. Obviously, estate planning is much more involved that the basics. Plus, an estate plan is a living document that will change, grow, and evolve over time. It needs to be reviewed and revisited as life changes occur.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you have estate planning questions, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your estate plan.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela)
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[i] See Chapter 732, Part I., Fla. Stat.
[ii] See §732.107, Fla. Stat. Escheat.
[iii] Statistic comes from – Ashar, Linda C. Esquire. The Complete Guide to Planning Your Estate in Florida. Atlantic Publishing Group, Inc. 2001.
[iv] On this point, I get it. Nobody (and I mean nobody) wants to think about their death or what should happen when to their assets when they die. The obvious problem is simple – once you are dead, you cannot do anything to help your family because you are gone. So, the only way to assist them is to do the planning while you are alive and make an estate plan. Find an attorney. Start with a will. It is money well spent. Remember, “There is no dollar sign on a piece of mind…” “Chicken Fried.” Home Grown. Zac Brown Band. (2005)
[v] See Chapter 732, Part V., Fla. Stat.
[vi] See §732.501, Fla. Stat. (“Who may make a will.—Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.”)
[vii] If there are questions about the capacity of the testator to make his will, then a medical professional can be consulted to examine and sign off on any competency concerns, but this is usually not a concern because Florida assumes that the testator is of sound mind, unless it can be conclusively demonstrated that the testator was not competent at the time the will was signed.
[viii] See §732.502, Fla. Stat. (“Execution of wills.—Every will must be in writing and executed as follows:
(1)(a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses.—The testator’s:
1. Signing, or
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator’s name to it,
must be in the presence of at least two attesting witnesses.
(c) Witnesses’ signatures.—The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.
(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.
(5) A codicil shall be executed with the same formalities as a will.
[ix] The witnesses must be legally competent which means 18 years of age or older and of sound mind. Disinterested witnesses are always a plus, but not required legally. See §732.504, Fla. Stat. Disinterested means that the witnesses have no financial or personal interest in the outcome of the will and are not otherwise beneficiaries.
[x] It is a good idea to have a backup plan in terms of one or two or even three successors in the even that the first or second named executor cannot serve for whatever reason. It is important to note that anyone adjudicated of a felony offense is legally disqualified from serving as an executor.