Wills in Florida … Why Is It Important to Have One?
What Is a Will?
A Last Will and Testament is a written document that contains an individual’s last wishes, including but not limited to the disposition of property, funeral arrangements, a guardian named for minor children, disposition of pets, assigning who bears any tax burdens, or even to create a trust(s) for heirs. As you can imagine, there is no such thing as a simple will.
Once created, a will remains in force until the person changes the will by adding a codicil, which is a supplement that explains, modifies or revokes a will or part of one. A will may be changed as often as the individual wishes, as long as they of sound mind and not under undue influence or duress.
A will becomes final only at the death of the individual. It’s important to note that a will cannot be changed by simply writing in the desired changes and initialing it. This actually could invalidate wills in Florida or parts of them.
Can a Substitute Be Used for Wills in Florida?
Some people mistakenly believe that a “joint tenancy with right of survivorship”, “estates by entireties”, a life insurance program, or a trust can substitute for wills in Florida.
Joint Ownership of Property – A joint tenancy with right of survivorship and estates by entireties assign ownership of titles and deeds of property to two or more people in order for ownership to pass to survivors at the death of one owner. The joint tenancy can be any group of people; whereas, estates by entireties only can be between two people married to each other. Both substitutes avoid probate in Florida but are not the solution to all family situations (blended marriages, one spouse with children the other without).
Life Insurance Plans – Life insurance only covers the policy benefits distributed at the death of the policy owner. It doesn’t cover other property or assets. So, it’s effect as a substitute is limited in scope.
Trusts – Typically, trusts are used in conjunction with a will – not as a substitute. Any property not included in the trust at the time of its creation or added later must be covered by a will or by contract (like a bank account with named beneficiaries). Otherwise, those non-trust assets will be controlled by the state at the death of an owner. Properly created wills cover all property, assets and income owned by the individual at their death; while trusts cover only specified property named in the trust.
Probate in Florida
Upon a person’s death, their will must be filed with the clerk. If there are assets that must pass through the will, then a probate action is required. The probate court carries out the distribution of assets as directed in the will. All estates covered by a will must go through a probate court, regardless of size or complexity.
Distribution is made only after the probate court proves that the will is valid, which considers if the will exactly followed the formalities of Florida law. This is one reason using do-it-yourself Last Will and Testament templates, even for the specific state of Florida, instead of hiring an estate planning lawyer could prove ineffective once the will goes through probate in Florida.
Filing a will with the probate doesn’t increase court costs, but it could decrease them by eliminating the uncertainties of not having a will.
Property that is not subject to probate in Florida has already been assigned beneficiaries by the owner, such as retirement accounts, life insurance policies, and payable-on-death or transfer-on-death accounts.
Consequences of Having No Will at Death
If a person has no will at the time of death or the probate court rules a will is not valid, the distribution of assets are governed by state statute for the distribution of your property/assets to whom the law considers your legal heirs, according to a pre-determined formula established by law. The inheritance statutes are quite rigid in Florida and may not distribute to heirs as you would wish or to whom you wish. Also, if absolutely no heirs can be found, instead of your property/assets going to a charity, eventually, the assets “escheat” to the state of Florida.
The state of Florida does not have inheritance or estate taxes. That being said, there are other taxes that must be filed after a person’s death, such as individual federal income taxes through the year of death and federal estate taxes, dependent on the amount of the estate. A will can designate an individual to ensure these taxes are paid, so your heirs do not have to deal with the legalities of not paying them.
Other Documents to Consider
At the time you create your Last Will and Testament, you also should consider creating the following documents in case of a health event that incapacitates you:
- A Living Will – A written declaration that specifies directions as to the use of life-prolonging procedures, as well as a healthcare surrogate who will make your medical decisions for you when you are not able to so, including when to withdraw medical procedures.
- Power of Attorney – Designates an individual to handle all your personal business and property matters if you are incapacitated. A power of attorney becomes invalid at a person’s death.
- Pre-Need Guardian Designation – Designates a guardian over yourself and/or your minor children (if needed) if you become incapacitated – if you do not make a designation and one is needed, the courts will do it for you; and it may not be someone to your liking.
Wills Created in Another State
If you have moved to Florida from another state and have a will created there, you should have an estate planning lawyer in Florida review it to ensure it was created according to Florida laws, your witnesses are available to prove the validity of the will, and your personal representative is qualified to serve under Florida law. If any of these are not in accordance with Florida statutes and you pass while a resident of the state of Florida, your will could be ruled invalid. It’s better to be safe than sorry – have your out-of-state will reviewed by a Florida estate planning lawyer.
It takes a knowledgeable and experienced estate planning lawyer to help you navigate all the complexities of creating a valid will. Elder & Estate Planning Attorneys PA will listen to your needs and desires for your estate and recommend the best avenues and tools to plan and structure your estate plan.
Don’t wait – create your estate plans now! Call us today!