What is a Will?

A Will is a writing that directs the manner in which a person’s estate is to be distributed following their death. Wills are recognized and governed by the Florida Statutes and thus have certain requirements in order to be legally enforceable and recognized under Florida law. These strict requirements include, but are not limited to, the document being in written form; having at least two witnesses present at the time it is signed; and acknowledged by a notary public at the time it is signed. Any failure to follow these requirements, along with the other numerous standards set forth under the applicable statute, causes the Will to be invalid and thus meaningless in determining the distribution of one’s estate.

What Kind of Property is Transferred by a Will?

When an individual passes away (thereafter known as a “decedent”), an “estate” is created that hold legal and beneficial title to the decedent’s property. A “probate” proceeding must be filed with the probate court of the county in which the decedent resided to initiate the legal transfer of property to their family members or friends. The probate court is where a valid Will is reviewed to determine how the property would be distributed.

However, the probate court only has jurisdiction over certain types of property of the decedent that fall within the “probate estate” and thus would be subject to the Will. Property that is subject to a contract (e.g. a bank account) or agreement (e.g., an operating agreement for a company) takes priority in determining how the decedent’s property or interest is to be transferred upon their death (known in certain situations as the “right of survivorship”). To demonstrate, here are just a few simplified scenarios involving a bank account:

  • If a decedent held title to a bank account with one other person, then upon the death of the decedent, the other surviving owner would automatically become the sole owner of the account and the funds therein.
  • If a decedent was the sole owner of named a beneficiary for the bank account, then upon the death of the decedent, the beneficiary would automatically become the owner of the account once the bank is given notice of the decedent’s death. Therefore, since there is no need for the probate court’s intervention to cause the distribution of the funds within the account, the Will would not control how the funds are to be distributed. However, if the decedent did not name a beneficiary, then the account (and the funds within the account) automatically becomes property of the decedent’s estate upon death and fall subject to the Will and the jurisdiction of the probate court.
  • If a decedent created a Trust and transferred the ownership (known as “title”) of the account from himself/herself “individually” to himself/herself “as Trustee of the Trust”, then the Trust document – much like a Will – would provide who the beneficiary of the account would be upon the decedent’s death. The “Successor Trustee” under the Trust – and not the probate court – would then be responsible for distributing the funds of the account to that beneficiary.

When do I Need a Will?

All persons – regardless of wealth – should have a Will so that the property they worked hard for can be given to whomever they prefer. However, a Will is especially necessary when a person wishes to divest (or “disinherit”) a particular family member of certain property (excluding specifically protected property under Article X, Section IV of the Florida Constitution). If a decedent dies without a Will (known as “intestate”), then Florida Statutes govern the distribution of the decedent’s property. The applicable statutes generally provide that a decedent’s property will pass to particular, living relatives of the decedent. The probate court would then strictly enforce the intestacy statutes to distribute the decedent’s property. Therefore, if you wish to have your property pass to specific people who are not close relatives, a Will is required.

How do I Create a Will?

As mentioned above, a Will requires numerous formalities that must be met to be legally valid and binding following your death.

Wills are a valuable estate planning asset. Wills often become the subject of contentious probate litigation proceedings when care is not taken and formalities are not followed. It is imperative that you speak with a competent attorney to create a Will so that your post-mortem intentions for your property are carried out without any issue.

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