What is a Will?
A will is a legal document that outlines how your property should be distributed after your death. For a will to be valid in Florida:
- The will must be in written form;
- You must sign the will in the presence of witnesses and notarize it;
- You must be at least 18 years old, and mentally competent; and
- The will must be proven and accepted by a probate court.
A will can be modified or supplemented by creating a new will or a “codicil,” which is an additional document that must be executed with the same formalities as the original will. Any alterations made directly on the will itself after its execution, such as adding new terms or crossing out existing terms, could potentially invalidate parts or all of the will.
What Can a Will Do and Not Do?
A will allows you to determine who inherits your property, rather than leaving it up to state law.
You can choose someone to serve as the personal representative of your will after your death. This representative (also known as an “executor”) can be an individual or an institution, like a bank or trust company, and will help ensure that your assets are distributed according to your wishes.
You can accomplish a wide variety of objectives through a will, such as:
- Selling real estate or other assets without court approval;
- Allocating gifts to charities;
- Deciding who will be responsible for any taxes;
- Designating a guardian for minor children; and
- Setting up a trust.
Some property interests cannot be transferred through a will. For example, if you are survived by a spouse or minor children, you may not transfer your homestead property. Likewise, property jointly owned by you and your spouse with the right of survivorship cannot be transferred; instead, the property will pass automatically to your spouse upon your death.
In addition, you cannot disinherit your spouse in your will without a legally executed marital agreement. Florida law provides your surviving spouse with the option to take either the share provided under the will or a portion of your property through a complicated elective share formula. The surviving spouse’s elective share includes jointly held and trust property, life insurance, and other non-probate assets. Given the complexity of this formula, it is typically necessary to seek guidance from an attorney.
What Happens If You Don’t Have a Will?
If you pass away without a will (known as dying “intestate”), your property will be distributed according to state law. This usually means your property will go to your legal heirs, not to the state of Florida, unless no heirs can be found. Without a will, the state’s inheritance laws dictate how your estate will be divided, and the court will appoint a personal representative to manage your estate, regardless as to whether you knew or would have approved of the representative. This process can be more costly and time-consuming compared to having a will.
Who Should Draft a Will?
Just as you would not choose an unqualified person to perform a medical procedure, you should not draft a will without professional guidance. An experienced attorney is crucial for avoiding pitfalls and ensuring your will meets all legal requirements under Florida law.