What are Wills?
Understanding wills can be confusing. The term “will” that most people are familiar with refers to the last will and testament. For conversation purposes, we will use the general term “will” on this page to describe what we are talking about, that being the last will and testament. The purpose of this page is to familiarize you with Florida Wills.
It should be noted that a will is completely different from a living will. Upon death, a will (the “operating manual” that is followed) comes into effect for an individual and outlines certain instructions to be carried out. Your will generally sets the guidelines for how your assets are distributed (money and property) upon death. It can also establish guardians for your minor children if applicable. Upon death, the will becomes effective and thus is irrevocable at that time (exceptions do apply).
In your Florida will, you can name beneficiaries to receive your assets according to instructions in your will. You can list gifts going to specific individuals such as, “John Doe will receive my main motor vehicle at the time of my death.” If you have assets, you should list them and list who gets them. You should also give instructions on what to do with assets that are not specifically designated to individuals or organizations.
As mentioned above, you may nominate someone to be the guardian of your minor child. You can have the same individual oversee the management of the assets given to the child and the child’s personal care, or you can separate those duties to two different people.
Your will should name a specific executor (also referred to as personal representative). This person or institution will manage and collect your assets, pay any debts owed by you, pay expenses and taxes, and then upon approval by the court, distribute your assets to your beneficiaries according to your will instructions.
What do Wills cover?
A will generally only covers assets that are titled in your name at death and which do not have a designated beneficiary. Life insurance policy proceeds are paid to the named beneficiary on the policy filed with the insurance carrier. Retirement plans that hold assets, such as 401(k) or IRA, are transferred to the person you have named as the beneficiary in the plan documents. In both, life insurance and retirement plans, your Will’s beneficiaries are not affected and accordingly do not collect the proceeds (unless they are named as the respective beneficiaries under the insurance policy or retirement plan).
Certain securities and brokerage accounts designate one or more beneficiaries to receive the assets in the account upon the account owner’s death. In these policies, the names of the beneficiaries are preceded by the words “transfer on death” or “TOD.” Other accounts or assets such as bank accounts or savings bonds, may be held in this similar form indicated by the words “paid on death” or “POD.”
Married couples holding property or assets with the right of survivorship as shown by the legal title will transfer to the surviving spouse upon the death of the other. These properties or assets pass directly to the surviving spouse without being affected by the will. The state bar has information on Florida Wills which can be found in their consumer pamphlet. Additionally, Florida Statute Section 732 guides Florida wills issues, creation, and much more.
What happens if I die without a will in Florida?
Dying without a will is referred to as intestate. If you die without a will, Florida law will determine who the beneficiaries of your estate are. If you are married, your spouse will receive all of your community property. In regards to your other assets, it depends on if you have children or not. In Florida, your spouse will take your entire estate if you have children, all of whom are also descendants of your surviving spouse, so long as the dead spouse does not have any other children. If you don’t have any children, your spouse takes your entire estate. If children of a different marriage do exist, the surviving spouse will take one-half of the intestate estate and the children who are not part of that marriage will split the other half. I should note here that legal separation does not blockade the spouse from receiving anything. Only a valid and legal divorce will sever the relationship. You should adjust your estate plan during separation and before a final divorce decree is granted!
If a person dies intestate (without a will) and does not have a spouse or children, his/her property will go to their parents. If they don’t have parents alive, the property will go to the descendants of parents (siblings or their issue). If they have no siblings or nieces/nephews, then the property will go to the maternal and/or paternal grandparents or descendants thereof. If they don’t exist either, then their property will go to other related family members. If none of the before-mentioned relationships exist, their property will pass to the state.
Can I change or revoke my Florida will?
You can change and revoke your will at any time. A codicil (an amendment to your will) can be used to change your will, but it must be drafted and executed in the same manner as a will. Additionally, if you create a legally valid will and execute it properly, it will automatically revoke your old one. The most recent valid will is the one that is used to distribute your assets upon your death.
If you get married or divorced, you should seek the advice of a lawyer and make a new will. You should also periodically check your will when there are other major changes in your family such as births and deaths, when your assets increase or decrease in value, or when you no longer need a guardian or executor to act in their capacity.
Who should know about my will?
No one except you and the lawyer should be aware of the exact contents of your will. Your executor, close friends, or the beneficiaries should know where to find it. The original should be kept in a safe place such as a fireproof box or safe deposit box.
Do I need a professional to draft me a will?
Yes! There are many providers or websites out there that advertise “do it yourself” wills. This is not a painting project or a DIY activity. We are talking about protecting your assets, your families harmony, and your peace of mind. Such websites should be avoided at all costs because they do not provide the protections that a licensed estate planning attorney can. Additionally, many times they are not up to date and could be completely invalid if not drafted and executed in the correct manner.
Is a will the best way to protect estate?
In deciding whether to use a will or a trust to protect your estate, some factors your lawyer will consider are your:
- Marital status & family unit
- Current needs & protections
- Acquired assets & personal items
- Estate planning goals
There are other options such as trusts that allow you to manage the assets while you are alive so long as the assets are named correctly. Your estate planning lawyer will go over the pros/cons and will be able to provide you the best solutions for your specific needs.