According to a recent annual survey by the legal Web site FindLaw, 57 percent of Americans do not have a will – potentially leaving them without any influence over crucial issues involving their assets or who will take responsibility for minor children after their death. Although most people recognize the importance of making a will, many simply never get around to preparing one.The purpose of this FAQ is to provide you with answers to frequently asked questions about making a will in Florida and the Florida probate process. Knowledge of these issues goes a long way to ensure peace of mind and that your final wishes will be met.I. WILLS UNDER FLORIDA LAWWhat is a will?A “will” means an instrument, including a codicil, executed by a person in the manner prescribed by Florida law, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will.Who may make a will?Under Florida law, any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. A person who makes a will is called a “testator.” In my opinion, it is extremely important for middle-aged parents with minor children to prepare their wills to ensure that their children receive proper care in the event of a sudden death to one or more of the parents.What happens if I don’t make a will?A person who has died is referred to an a “decedent.” Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed by the Florida Probate Code. The decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.Under Florida’s intestate succession laws, the shares of an estate are divided as follows:A. The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.
(3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.B. The part of the intestate estate not passing to the surviving spouse as described above or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in Florida statutes, including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great grand parents.When a person dies intestate without any living heirs, then the intestate assets are distributed to the State of Florida School Fund (note: this rarely happens).What are the formalities for the execution of a will?Like other states, Florida has very specific formal requirements about how a will must be prepared and executed. Failure to comply with the strict requirements of Florida law may result in a document that may not be admitted to probate or a contest over its validity.Florida law requires that every will must be in writing and executed as follows:
(1)(a) Testator’s signature.–
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses.–The testator’s:
1. Signing, or
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator’s name to it,
must be in the presence of at least two attesting witnesses.
(c) Witnesses’ signatures.–The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, is valid as a will in Florida if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with applicable Florida law shall not be considered a holographic will.Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in Florida.No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. A codicil (an amendment to the will) shall be executed with the same formalities as a will.Why is it important that a will be self-proving?A will or codicil executed in conformity with the Florida Probate Code may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will, in substantially the form prescribed by statute.A will or codicil made self-proved under former law, or executed in another state and made self-proved under the laws of that state, shall be considered as self-proved under this section.A self-proved will can be admitted to probate by the Court without the necessity of filing additional documents to prove that the will is valid. If a will is not self-proved, the Probate Code requires a lengthy (and often expensive) process be taken to prove the validity of the will to the Court.Who may witness a will?The Florida Probate Code provides that any person competent to be a witness may act as a witness to a will. A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested person or witness.Can a will be revoked?A will can be revoked by the testator by a writing (i.e., making a new will) or by act (i.e., burning, tearing, canceling, defacing, obliterating, or destroying the will) with intent, and for the purpose, of revocation.What is the effect of subsequent marriage, birth, adoption or dissolution of marriage?Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in the Florida Probate Code regardless of the prior will.Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.When does a devise contained in a will vest?The death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before a devise vests.What is a separate writing devising items of tangible personal property?A written statement or list referred to in the decedent’s will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible in the Probate Court as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.What is the effect of fraud, mistake, duress and undue influence?A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons.Can I include a penalty clause for will contest?A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable. An interested party in an estate proceeding can contest the will, but the action to contest the validity of a will may not be commenced before the death of the testator.What is a Durable Power of Attorney?A Durable Power of Attorney is separate and distinct from a will. A Durable Power of Attorney is for use during your lifetime, while a will governs your estate after your death.A Durable Power of Attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact. The Durable Power of Attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law, and must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity, except as otherwise provided by Florida law.The designated person in a Durable Power of Attorney typically has the legal authority to handle the principal’s financial affairs and make health care-related decisions (except when the principal is in a terminal condition).What is a Florida Declaration?A Florida Declaration is a document in which you authorize your agent to remove life support so that you can die with dignity in the event of a terminal condition.II. PROBATE UNDER FLORIDA LAW.What rules of construction apply to wills?The Florida Probate Code provides that the intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in the Florida Probate Code shall apply unless a contrary intention is indicated by the will. Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.When must a will be submitted to the Probate Court?The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator’s date of death or social security number to the clerk upon deposit.Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will as specified above. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.What is the proper venue for an estate proceeding?The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.What must be proven before a will is admitted to probate?Self-proved wills executed in accordance with the Florida Probate Code may be admitted to probate without further proof. Before a court can admit a will which is not self-proved, the Probate Code requires a procedure to determine the validity of the will.What is the Formal Administration process?If the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, exceeds $75,000, then Florida law requires a Formal Administration of the estate. The Formal Administration process requires the personal representative and the personal representative’s attorney to prepare the Petition For Administration, prove the will (if necessary), address creditors of the estate and their claims (if any), preserve and maintain estate assets, file an Inventory, file estate tax returns with the Internal Revenue Service and Florida Department of Revenue (if necessary), and distribute the estate assets to the heirs of the estate.It typically takes four to eight months to conclude Formal Administration in Florida, but may take significantly longer if the estate must file an estate tax return with the Internal Revenue Service, real property must be sold, or other complications arise.What is the Personal Representative’s role?In Florida, a personal representative is the fiduciary appointed by the court to administer the estate. In other states, this fiduciary is commonly known as an administrator, administrator, or executor.A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as provided by Florida law. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and the Probate Code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by the Probate Code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.The Florida Probate Code sets the compensation for the personal representative of an estate. The compensation for ordinary services for the personal representative is basically three percent (3%) of the inventory value of the estate. The compensation increases when the personal representative performs extraordinary services as specified by the applicable statutory section.What is the role of the Attorney for the Personal Representative?Local Court Rules require that the personal representative use a Florida attorney to file and administer an estate proceedings. The attorney’s role is to work with the personal representative to handle the legal issues that arise during the course of administration. The attorney represents the personal representative in these proceedings, not the heirs, creditors, or other interested parties.The Florida Probate Code sets the compensation for the attorney for the personal representative. The compensation for ordinary services for an attorney is basically three percent (3%) of the inventory value of the estate. The compensation increases when the attorney performs extraordinary services as specified by the applicable statutory section.What is the process for Summary Administration?The Florida Probate Code provides for Summary Administration when the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.Although Summary Administration is more stream-lined than Formal Administration, the process still requires that the decedent’s creditors be addressed, all claims resolved, and the orderly distribution of the estate assets.Disposition without administration.Florida law provides for an expedited procedure for very small estates. No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of the Florida Probate Code, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that the disposition of the estate without administration is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled. Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.WHY HIRE A FLORIDA ATTORNEY TO PREPARE YOUR LAST WILL?Let me give you four compelling reasons for starters:Reason 1: Many attorneys charge a flat all-inclusive fee to prepare a client’s simple will, Durable Power of Attorney, Florida Declaration (“Living Will”).Reason 2: The client typically receives extensive advice about preparing your will and related documents even when the attorney charges a flat fee. To give you some perspective, I normally charge clients an attorney fee of $247 – $297 per hour for advice on other legal issues.Reason 3: Your documents shall be drafted by a member of The Florida Bar Association to fit your specific needs, not processed by an unlicensed document preparer, paralegal, or internet site that is prohibited from providing any legal advice.When it comes to preparing legal documents, you get what you pay for. If you want to pay the lowest price possible (i.e., some internet sites advertise will preparation for as little as $49), you can expect minimal service, bare-bones documents, and no legal advice from a licensed attorney knowledgeable about the relevant issues. I readily acknowledge that it’s possible to prepare a will for a nominal cost by contacting a paralegal, document preparer or internet site. Unfortunately, these providers are engaging in the unlicensed practice of law if they provide any legal advice in regards to the issues that arise. In addition, these providers simply don’t have the education or experience necessary to address complex legal issues – they are only able to prepare basic forms which may – or may not – meet the client’s needs. You may pay a low price, but I seriously doubt that you will receive tremendous value, competent legal advice, personalized service, or peace-of-mind.Naturally, some prospective clients mistakenly (in my opinion) believe that they are purchasing a commodity when making their will and thus the most important factor is price. Although I wish these people the best, these are not the type of clients most lawyers seek. Quite frankly, a lawyer is not the lowest-cost solution, nor do they want to be. An attorney typically works with clients who want to receive the benefits of establishing an attorney-client relationship and with clients who demand the counsel of a licensed, experienced, and knowledgeable attorney who is attentive to their needs. I, for one, work with clients who understand the benefits of legal advice and are willing to pay a fair price to obtain it.I’m confident that you’ll save considerable time, money and peace-of-mind in the long run by having a licensed Florida attorney prepare your will, Durable Power of Attorney, or Florida Declaration instead of relying on an unlicensed document preparer, paralegal, or internet site.
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