Legally Speaking: Wills
From the Florida Bar Pamphlet: Do You Have a Will?
A
will is a written direction controlling the
disposition of property at death. The laws of each
state set the formal requirements for a legal will.
In Florida, the maker of the will (testator) must be at
least 18 years old, of sound mind and the will must be
written. Your will must be witnessed and notarized
in the special manner provided by law for wills. It is
necessary to follow exactly the formalities required by
Florida law for the execution of a will.
To be effective, your will must be proved valid in and
allowed by the probate court. No will becomes final
until the death of the testator, and it may be changed
or added to by the testator by drawing a new will or by
a “codicil,” which is simply a separately written addition
or amendment executed with the same formalities
as a will. A will’s terms cannot be changed by writing
something in or crossing something out after the will is
executed.
Through a will, you decide who gets your property
instead of the law making the choice for you.
A trust may be created in your will whereby the estate
or a portion of the estate will be kept intact with
income distributed to or accumulated for the benefit of
members of the family or others. Minors can be cared
for without the expense of proceedings for guardianship
of property.
Real estate and other assets may be sold without court
proceedings, if your will adequately authorizes it. You
may make gifts, effective at or after your death, to
charity. You decide who bears any tax burden, rather
than the law making that decision.
A guardian may be named for minor children.
If you die without a will (this is called dying “intestate”),
your property will be distributed to your heirs according
to a formula fixed by law. Your property does not go to
the state of Florida unless there are absolutely no heirs
at law, which is very unlikely. In other words, if you fail
to make a will, the inheritance statute determines who
gets your property. The inheritance statute contains
a rigid formula and makes no exception for those in
unusual need.
When there is no will, the court appoints a personal
representative, known or unknown to you, to manage
your estate. The cost of probate may be greater than
if you had planned your estate with a will, and the
administration of your estate may be subject to greater
court supervision.
While any sort of property may be transferred by
will, there are some particular interests in property
that cannot be willed because the right of the owner
terminates automatically upon death, or others have
been granted rights in the property by Florida law. Some
examples of these types of property rights or interests
are:
• Except in certain very specific circumstances, a
homestead (that is, the residence and adjoining lands
owned by a person who is survived by a spouse or
minor child up to one-half acre within limits of an
incorporated city or town or up to 160 acres outside
those limits).
• A life estate: property owned only for the life of the
owner.
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