A Last Will and Testament is often referred to as a “Will”.
The law of Florida that defines the rules for a valid Will. Each state has its own laws on how to create a valid Will. Florida law found in Florida Statute 733.501 to732.504.
• Florida Statute indicates that to be considered a valid Will it must be typewritten. It must be signed at the end by the maker in the presence of two subscribing witnesses. There is no requirement the signatures on the Will are acknowledged by a notary public.
• A “holographic” Will is one that is handwritten by the Testator without any witnesses. A handwritten Will is not recognized as valid in Florida.
• A “nuncupative” Will is one that is made verbally in the presence of witnesses. Such a Will is made by terminally ill individuals when a written Will is not possible. Some jurisdictions recognize nuncupative Wills in some situations, Florida does not.
The person who creates a Will is referred to as a “testator” (male) or “testatrix” ( Female). For purposes of this discussion, a testator and testatrix will be referred to as a “Maker”.
• A Will has no effect on any assets owned by the Maker during life.
• A Will can outline who inherits assets owned by the Maker titled in his/her name alone.
Assets titled jointly along with another person or legal entity as one of the owner, does not pass according to the terms of a Will. (e.g., “joint tenancy”).
A Will allows the Maker to designate who is to serve as the manager of the persons assets when he/she dies to distribute those assets according to the terms in that Will. This is referred to as the “personal representative” of the estate.
A Will allows the Maker to identify who is legally authorized to serve as guardian of a minor child upon the Maker’s death.
A Will can, but is not required, to contain clauses to create a Trust or Trusts to manage distribution of assets over time after the Maker dies. Those trusts are referred to as “Testamentary Trusts”. Testamentary Trusts are used when the Maker wants a judge to validate a Testamentary trust as being valid or to manage assets of a minor or incapacitated beneficiary who is the receive assets of the Maker’s estate. A Trust can also be created outside of the Will. This is referred to as a stand-alone trust. (See Revocable Living Trusts or Trusts section of this website for further information regarding Trusts and its purposes and use.)
A Will is deemed “legally valid” in a court proceeding referred to as Probate. Probate is the process of managing and distributing the assets and paying the debts of a person who has died. A Will is important when a Maker believes it is best to have the courts oversee management and distribution of the Maker’s estate. This is important when the Maker believes there will be arguments over who is to inherit assets of the estate.
Nine Quick Reasons to Have a Will
1. Allows property to be transferred according to the Maker’s wishes.
2. Allows the Maker to select the beneficiaries and to specifically what property each beneficiary is to receive.
3. Helps avoid disputes amongst or between family members as to who is to receive assets of the Maker’s estate.
4. Permits a parent to name a guardian for minor children or other dependents, such as a handicapped adult child.
5. Name the personal representative who is authorized by the probate court to deal with creditors of the Maker.
6. Testamentary Trust can be added to a Will to manage distributions of assets to a minor child’s until the age the Maker defines
7. Testamentary Trusts can afford protection against a child or beneficiaries creditors.
8. Allows the Maker to define certain assets to be given to specific individuals or even charities. (Specific Devise)
9. Reduces the burden on the family. At the Maker’s death, the family will most likely have to handle the Maker’s personal affairs. Without a will, this job is much more difficult. Creating a will is an act of consideration for those left behind.