Three Situations Where Creating a Will in Florida is an Absolute Must

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By Gary M. Landau, Esq.

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Three Situations Where Creating a Will in Florida is an Absolute Must | Call (954) 979-6566

No one likes to think about dying, so it’s no surprise that people tend to procrastinate when it comes to creating their last will and testament, also known as a will. But based on my 25+ years of experience as an estate planning attorney serving clients in South Florida, delaying the creation of this document is a mistake. This is true for everyone, but it’s especially the case for certain people.

A will is a legal document created while a person is alive to document how they want their assets distributed after they have died. As noted in a previous blog, crafting a valid will that accurately states your intentions doesn’t have to be an arduous task. With the guidance of an experienced will lawyer, the process can be completed in a few days or weeks, after which you have a document that honors your wishes and complies with Florida state law.

For more than a quarter of a century, The Law Office of Gary M. Landau, P.A., has been assisting clients composing wills in Florida to allocate their assets as they desire.

This blog explores three specific situations where creating a will in Florida is especially important. Continue reading to learn more, then contact us at (954) 979-6566 to schedule your free consultation by phone, in person, or by Zoom.

1. If You Want to Disinherit a Close Relative

Sometimes even the closest relationships deteriorate over time, while others never develop in the first place. This may be the case even for a very close relative–a parent, say, or a grown child. You may be estranged from these relatives and not want your assets to go to them upon your death.

If a person dies without a will, however, Florida law has a distinct process for who gets their assets, which is based on family relations. For example, say you have three grown children but are estranged from one. If you die without a will (and without a living spouse) the law treats each of these children equally and gives each a third of your estate.

When you draft your own will, however, you can choose to disinherit this relative, and the probate court will respect your wishes. The only exception is a living spouse, who is entitled to certain assets under Florida law.

2. If You Don’t Know (Or Can’t Document) That Both Your Parents Are Still Living

Sometimes situations happen where a parent is no longer in our lives. Our law firm recently had two separate cases when estranged parental relationships made probating their estate a complicated process because neither person had drafted a will before they died.

One client was sure her estranged mother was long dead as she sought to probate her brother’s estate. But when asked to produce a death certificate so the client’s probate could proceed, she discovered their mother was still living, having been committed years earlier to a mental institution. There was no will, so Florida law gave the home the brother had been living in to his mother, his closest living relative, even though the brother would no doubt have preferred the home go to his sister or other people.

In the other case, the deceased man co-owned his home in Florida with his fiancé in a form of ownership known as tenants in common. The man’s mother, who raised him in the U.S., had died years earlier, as had his father in Ukraine. But the fiancé could not get a death certificate from Ukraine to document the father’s death, which meant the deceased man’s half share of the home legally belonged to the father. Although the fiancé owned half the home, she could not obtain the clear title required to sell it. (Had they already been married this would not have been an issue, nor would it have occurred had they purchased the house in the ownership form known as “joint tenants with rights of survivorship.”)

Cases like this illustrate why drafting a valid will that leaves your assets to the beneficiaries of your choosing is especially important in this situation.

3. When You Have Minor Children

People who are young and have young children are often lulled into the belief that they are too young to die. While that’s probably true, dying without a will when you have minor children is especially problematic.

In addition to designating who receives assets, a will also allows a person to document the person they desire to serve as guardian to the children should both parents unexpectedly pass away.

Without a will, the court chooses which relative will raise the child, or it can even name a state-appointed person. This may not be the guardian you know would be best for your child.

It is always a good idea when drafting a will to name a backup guardian should the person not be in a position to take on that role at the time of your death. It is also crucial that you check with them to be sure they desire such a huge responsibility if need be.

Understanding the Requirements for a Valid Florida Will

It’s not enough to draft a will, you have to do it in a way that it is legally valid in the state where you reside. A legally valid Florida will has several specific requirements:

Age: A person must be at least 18 years old or a court-recognized emancipated minor.

Sound Mind: The person writing the will must be of “sound mind,” meaning they have a clear understanding of their assets and decisions. Florida law does not consider individuals with severe dementia or other mental impairments competent to create a will.

In Writing: A Florida will must be written.

Witnesses: A will must be signed by the testator (the person creating the will) in the presence of two competent adult witnesses, who must also sign the will. These two witnesses must not be beneficiaries. The witnesses should also witness and sign a separate document known as a self-proving affidavit that can streamline the probate process later.

Heirs: A will identifies each person you want to leave all or part of your estate to, known as an heir. A well-drafted will identifies each heir by name and specifies bequeaths and the percentage of assets you wish to leave to them. Keep in mind that Florida law ensures protection for spouses and minor children, preventing them from being completely disinherited.

Personal Representative: The personal representative (PR) is the person who oversees the probate process after your death. It is important to name a specific PR in your will. This individual should be a mentally and physically capable adult. If they reside in a different state, they must be a blood relative. It’s a good idea to have a conversation with the person you’d like to name as your personal representative first, to ensure they are willing to take on this role, and to name a backup if they predecease you.

Specific Devises: A will does not need to specifically list any of your possessions, because you can simply state the percentage of assets each heir will inherit. However, if you would like to leave something meaningful to a specific person–for example, your heirloom engagement ring to your granddaughter–you can state this in your will or, even better, include a separate attachment with these devises.

An experienced Florida estate planning attorney is best positioned to help you draft and execute a valid will that reflects your wishes.

Understanding Wills and Why Regularly Updating Your Will is Crucial

Over time, life events may require you to make adjustments to your original will. This may be due to a marriage, divorce, having children, moving to a different state, having a falling out with close relatives or friends, experiencing significant financial changes, or dealing with the death of your planned beneficiary or personal representative, among others.

It is crucial to review your will anytime you have one of these major life shifts. It is also a good idea to routinely look over your will every five to ten years to be sure it reflects your current wishes.

Do I Need an Attorney to Create a Will?

Florida law does not require that an attorney create your will. However, to be accepted by the court following your death, a will must adhere to Florida state laws. This is why it’s best to consult an experienced estate planning attorney for assistance.

It is always unfortunate when an heir comes to our office with a will that has not been properly drafted. In some cases, errors can make the will void, with the courts treating the probate as if the person had died without a will. In other cases, errors or sloppy wording make intentions unclear, or worse, might leave certain assets to people contrary to what the deceased person actually wanted.

Some companies sell do-it-yourself templates for wills online, but not all are done well and some are not crafted specifically for Florida but seem adapted from other states with different laws.

Working with a knowledgeable will lawyer with experience with the Florida probate process can help you avoid complications.

Why You Need Will Even if You Have a Living Trust

Some people have a revocable living trust that they think eliminates the need to have a will. However, this is almost never the case.

It is not uncommon for individuals over the years to neglect to transfer all of their assets into their living trust. Assets not held in the trust’s name would be subject to probate.

That is why it is important to draft a will, referred to as a “pour-over” will, even when you have or are creating a living trust. This additional legal document ensures that assets not in the trust will be distributed according to your wishes.

Wills that Florida Does Not Recognize

When drafting a will in Florida, it is important to recognize the types of wills the probate courts will not recognize:

Holographic wills: These are handwritten wills without witnesses; they don’t fulfill the legal requirement for Florida wills.

Oral wills: Wills that are simply told to another person are not valid. Even if the person hearing the bequests swear the person told them where their assets should go the probate courts will not honor this.

Certain wills drafted in other states: Florida probate courts do accept out-of-state wills if the person was a resident of that state at the time the will was drafted (and subsequently moved to Florida) and if the will complies with that state’s laws, even if they are different from Florida laws. However, wills that don’t meet these requirements will not be accepted by Florida courts.

Quick Frequently Asked Questions

1. What is the “Elective Share,” and how does it prevent me from fully disinheriting my spouse?
Under Florida Statute § 732.201, a surviving spouse has a legal right to claim an Elective Share, which is 30% of the “elective estate.” This estate includes not only assets in the probate process but also many non-probate assets, such as the decedent’s interest in joint accounts, certain trust assets, and even life insurance policies. Unless a spouse has waived this right through a validly executed prenuptial or postnuptial agreement, they can override the instructions in a will to claim this minimum percentage.

2. Can I leave my primary residence to anyone I want in my Florida will?
Not necessarily. Florida’s Homestead Law imposes strict “devise restrictions” on your primary residence. If you are survived by a spouse or a minor child, you cannot freely leave your home to another person or entity.

  • If you have a spouse but no minor children, you must leave the home to your spouse in “fee simple” (full ownership).

  • If you have minor children, any attempt to leave the home to someone else is considered an “invalid devise,” and the home will typically pass as a life estate to your spouse, with the remainder interest going to your children.

3. Does Florida recognize “Electronic Wills” signed via video conference?
Yes. As of 2020, the Florida Electronic Wills Act allows a Testator (the person making the will) to sign their documents electronically. This process can be witnessed remotely via live audio and video. However, strict requirements must be met: the session must be supervised by a notary public, the signing must be recorded, and the electronic will must be stored by a “qualified custodian” to be considered legally valid. Note that “vulnerable adults” (as defined by Florida law) are generally prohibited from using remote witnessing.

4. Is there a faster probate process for smaller estates in Florida?
Yes. Florida offers a simplified process called Summary Administration for estates that meet specific criteria. To qualify:

  • The total value of the non-exempt estate must not exceed $75,000, OR

  • The decedent must have been deceased for more than 2 years. Summary Administration is typically faster and less expensive than Formal Administration because it does not require the appointment of a Personal Representative. However, it is only available if the estate’s creditors have been addressed or if the estate is debt-free.

5. Which assets skip the probate process entirely, even without a Living Trust?
Several types of asset transfers occur automatically by operation of law or contract, regardless of what your will says. These include:

  • Joint Tenancy with Right of Survivorship (JTWROS): Real estate or bank accounts held with another person who automatically becomes the sole owner upon your death.

  • Tenancy by the Entirety: A special form of joint ownership for married couples.

  • Beneficiary Designations: Accounts labeled as Payable on Death (POD) or Transfer on Death (TOD), as well as life insurance policies and retirement accounts (like IRAs or 401(k)s) with named individuals.

LAW OFFICE of GARY M. LANDAU, P.A.: Your Experienced, Knowledgeable and Compassionate Will Lawyer Serving Coral Springs, Parkland, and South Florida

Have you been searching online for an “estate planning attorney near me?” for help with your Florida will and other estate planning documents? With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2024. 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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