An Experienced Florida Attorney Answers Frequently Asked Questions About Writing and Probating a Will

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By Gary M. Landau, Esq.

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Florida Attorney Answers FAQs About Writing and Probating Will | Call 954-979-6566

People frequently put off writing their Last Will and Testament (more commonly called a will) and other end-of-life documents. That’s understandable, given that it is hard to think about death. But regardless of your age or financial situation, thinking about your will–and taking action by preparing one and other estate-planning documents–is important. If you don’t plan ahead, hopefully for a time that won’t come for many years, it will be a Florida state court, not you, who will make critical decisions about your assets.

Each state has its own set of rules when it comes to writing and executing a will. You’ll want to work with an experienced Florida estate attorney to draft a valid will, as well as other essential documents. For more than two decades, the Law Office of Gary M. Landau, P.A., located in Coral Springs, Florida, has drafted Florida wills, trusts, living wills, healthcare surrogates, and other documents. We have the experience and knowledge to help you meet your needs.

What Is a Will and Why Do I Need One?

A Florida will is a court-recognized legal document that allows you to name who will inherit your property, money, and other valuables. Wills are also where you designate your choice for a legal guardian should you pass away while your children are minors. Married couples require two separate wills, one for each individual.

It is critical that your Florida will be properly drafted, because any errors may be irreversible once it is filed with the court after your death. In some cases, courts have declared improperly drafted wills to be invalid, causing assets to be distributed in accordance with state law rather than the deceased’s wishes.

Do I Need an Attorney to Draw Up a Will?

Many websites offer do-it-yourself (DIY) or computer generated wills, but we advise strongly against doing this. Your Florida will is likely to be the most important document you will create in your lifetime. Mistakes are all too common with DIY wills.

Also, the forms available on many websites may be poorly written or contain ambiguous wording. They don’t always specify how a will must be properly executed in Florida (each state has its own rules). Even forms claiming to be created for Florida may have been modified from other states and may not be completely accurate.

We have seen too many cases of people presenting their loved one’s DIY will after they have passed only to discover it was not properly drafted or executed. Don’t let this happen to your loved ones.

When Should I Modify My Current Will?

It is important to keep your will up-to-date. It’s a good idea to get into the habit of pulling it out every few years to be sure it reflects your current thinking.

That said, you should always revisit your will when you have a major change in your life.

You likely need to modify your Florida will when you get married, have a child, get divorced or have your marriage annulled. You may also want it to be altered if your financial circumstances drastically change, such as if you receive a windfall work bonus or a lump sum payment as compensation or inheritance.

If you have a falling out with the person you named as your personal representative, or if they move far away, this can be another reason revisions are in order.

How Do I Modify My Will?

There are several ways to modify a Florida will. One option is to create a codicil, which is an amendment to a will. It refers to the specific sections of your will that you want to be changed, but leaves the remainder of the will intact.

Like a will, a codicil is a binding legal document that should be created with the help of an experienced estate attorney. The document must be signed in the same manner as a Last Will and Testament.

Another option is create a new will and revoke the previous one. This should be done if the changes you want to make are substantial.

Where Should I Store My Will?

Once a will is created and executed (meaning it is properly signed and witnessed), you should give important consideration to where it will be stored. That’s because after you pass away the court will require that the original signed will be filed. (This should ideally be done within 10 days of a decedent’s death.) In most cases a copy of the will is not sufficient. That’s why it is essential to store your signed and fully executed will in a safe, secure location.

You can keep your original document in a vault or safe in your own home or at the office of your Florida estate planning attorney, which typically have locked vaults for this purpose.

You can also keep your original will in a lockbox or a locked fire-proof filing cabinet, or in another container that is fire- and water-resistant, in your home.

One place you should never store your will is in your safety deposit box at a bank. Access to this will be blocked by your bank as soon as it learns of your passing, so your heirs will not be able to easily get this document from your box.

Aside from the original, it is smart to also create one or more digital backup copies on your computer. It is important that you inform your close heirs where these copies and the original document are kept.

What is the Difference Between a Will and a Living Will?

Despite their similar names, a living will is a completely separate document.

Both may be created together, because a Living Will also becomes important towards the end of your life. This is the document that communicates your wishes at a hospital when you are incapacitated, alerting your physician whether you want heroic measures taken such as putting you on life support if you cannot recover.

What if a Deceased Relative Leaves No Will?

If a person dies without a will in the state of Florida, their assets will be distributed in the probate process according to the Florida probate code (Chapter 732). The statute takes into account whether the person is married, has children, and which family members survive them.

For example, if you pass away without a will and are married at the time of your death and either have no children or your children are also those of your current spouse, your spouse would inherit your entire estate. If you have children from a prior relationship, though, your spouse would inherit half of the estate and your surviving children would split the other half.

What if you have no relationship with one or more of your children? The law still gives them their legal portion of the estate, which is why having a will specifically disinheriting them would be important should you wish to do this.

What if We Cannot Find the Original Will of a Deceased Relative?

Our office always tells clients in this situation to look hard. That’s because if you only have a copy of a will, probate courts in Florida require a time-consuming and drawn out process before they consider whether the copy can be legally admitted.

What If My Father Left Everything to My Siblings And Nothing to Me?

Unfortunately for you, that is permissible under Florida probate laws. As long as there are no grounds to invalidate the will, such as if you think it was signed when your father was not in his right mind, you will not get any of his inheritance. In Florida, adult children can be left out of a will if the person writing the will desires that. However, certain rights to a primary (homestead) home may be granted to minor children.

Contact the Law Office of Gary M. Landau, P.A. for Help With Probate

A knowledgeable will and probate lawyer can ensure that all your legal documents and a loved one’s probate process are performed efficiently and properly.

The Law Office of Gary M. Landau, P.A., has over 25 years of experience with wills and probates and other legal services. Clients in Broward and South Palm Beach Counties can come to our offices in Coral Springs, but the Law Office handles probates everywhere in the state of Florida and has filed probates in nearly every county in the state.

To understand the fees involved in drafting a legal will or probating a loved one’s estate, call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We can work with you in person, over the phone, or on Zoom.

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
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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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