An Experienced Florida Estate Attorney Answers the Most Frequently Asked Questions About Wills

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By Gary M. Landau, Esq.

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Experienced Florida Estate Attorney Answers FAQs About Wills | Call 954-979-6566

Planning for your end-of-life can feel overwhelming and complicated, so people often avoid it. But by waiting to create the documents you need, you risk being unprepared if the unexpected happens.

Making your last will and testament–commonly known as a will–does not have to be difficult, especially if you get the support of an experienced, professional lawyer.

For more than twenty-five years, The Law Office of Gary M. Landau, P.A., has helped clients draft their wills to exactly reflect what they wish to do with their assets after they are deceased This is an important way to help your family members and heirs avoid confusion about what you wanted, maintaining harmony at this emotional and stressful time.

Here are answers to common questions about wills from Coral Springs, Florida, wills lawyer Gary M. Landau:

How Can I Create a Will in Florida?

A will is a legal document that must be created in accordance with Florida law.

A comprehensive will:

  1. Defines each heir and the percentage of your wealth you wish to bequeath to them. (Florida law protects spouses and minor children, preventing them from being entirely disinherited.)
  2. Names a personal representative who will help settle the estate after your death. (If a non-relative, this must be a Florida resident.)
  3. Names a legal guardian who will care for your children if they are minors when all parents pass away. This is one of the most important reasons for young couples with children to make a will.
  4. Must be signed in front of two witnesses who are not beneficiaries.

Wills do not need to name individual assets you possess, unless you plan to make specific bequests, such as leaving a vacation home to a fishing buddy or a special piece of jewelry to your favorite niece.

What Happens If I Don’t Create a Will?

If you die without a will in the state of Florida, the courts will distribute your assets based on the  formulas created by law. This is known as dying intestate. This means judges, rather than you, determine who gets your assets.

If you are estranged from a grown child, for instance, that child will inherit part of your estate even if you do not want them to. Or, say you bought one of your grown child a house during your life and had planned to deduct that amount from their portion of your inheritance; if you die intestate this will not be done.

And if you have no immediate living family members and want to leave your money to charity, the courts will instead give your assets to your nearest relative, who could be a cousin or nephew you never see.

Do I Need an Attorney to Create a Will?

Legally, you do not need an attorney to create a will.

However, experts strongly recommend you use one with experience drafting wills. This is because a will must exactly follow Florida law to be admissible in court. You don’t want your heirs to discover that your will is inadvertently invalid after you are gone and unable to fix it. We have dealt with many clients over the years in this situation, sometimes with financially tragic results.

There are forms people can buy or find online to draft a will themselves. But these are sometimes adapted from other states with different laws and may not stand up in a Florida court.

Using a will lawyer with years of experience can help prevent future complications and ensure that your wishes will be met.

Do I Need a Will if I have a Living Trust?

A revocable living trust is a legal document where all of your assets are in the name of a trust rather than in your personal name. After you pass away, the successor trustee takes over the trust and controls the assets.

When people create a living trust, they must move all of their assets into the trust. This includes transferring property deeds to the name of the trust as well as brokerage and bank accounts and the like.

Often, assets purchased after the trust is created are not funded into the trust. This is why it is crucial that even if you have a living trust you create a will as well, often referred to as a “pour-over” will.

People often create a living trust thinking this will help them avoid the probate process, but in many cases certain assets need to be probated anyway because they were not transferred into the trust. Having a will in addition to the trust ensures your assets will go to the people you want them to.

Are There Some Types of Wills Not Recognized in Florida?

The state of Florida is very specific about the types of wills they will recognize.

For example, the courts will not honor a holographic will, which is a handwritten will without witnesses.

It will also not accept an oral will, even if the person the will was spoken to offers to swear in an affidavit what they heard the person say.

Out of state wills drafted in complete compliance with another state’s laws are considered valid in Florida. However, it’s always best to consult with an attorney to ensure that all provisions of the will are accepted here. For example, if your New Jersey will names a local personal representative who is not a relative, that person will not be able to serve in that role if you moved to Florida and did not alter your will.

What Other Documents Should I Ask a Wills Attorney to Draft?

In addition to your last will and testament, your attorney should also draft the following two documents, which are crucially important near the end of your life:

  • Living will. This document enables you to request not have aggressive end-of-life care such as being put on a ventilator if it is clear you will not recover.
  • Healthcare power of attorney. This names the person who will make medical decisions in the event you are unable to. Say you have no living spouse and have three grown children. Which one would you want to be determining whether you should undergo surgery or be put on certain medicines if you are unconscious? A healthcare power of attorney takes the guesswork and arguments out of your children’s hands.

My firm has created an additional document which is not required but many families find helpful. Called “My Last Emotional Wishes” this free downloadable four-page form allows you to share your emotional and spiritual desires for when you near the end of your life. This includes such wishes as whether you want family to talk to you or just sit in silence, the kind of music you’d like played as you near your death, and how religious a service you want at your funeral.

You can download this free form at the bottom of the home page of The Law Office of Gary M. Landau, P.A..

How Can I Find a Wills Attorney Near Me in South Florida?

If you want an experienced, knowledgeable, and compassionate lawyer to help you draft your will, contact the Law Office of Gary M. Landau, P.A for a free consultation.

We can work with you in person, over the phone, or on a Zoom call to talk about your options.

Call us today in Coral Springs, Florida, at (954) 979-6566, or fill out our online form to schedule your consultation at no cost. We look forward to serving you.

Copyright © 2022. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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