A will is one of the primary estate planning tools that passes property to the designated beneficiary(ies). A will, of course, is an instrument that controls the disposition of the testator’s property after his or her death.
There are several types of property that are generally conveyed by a last will. A will generally conveys real property, tangible personal property and intangible personal property.
An effective last will should identify the testator’s family members by making specific reference to the testator’s spouse and children, and sometimes even the grandchildren. If the testator is divorced or widowed, that should also be noted.
Additionally, a last will should contain a “disinheritance clause” if close family member(s) will be excluded from the will as such clause will reduce the likelihood of a will challenge. After all, a testator is not required to leave anything to an adult child. Therefore, language that specifically acknowledges a disinherited adult child in the will would tend to reduce the potential for a future conflict.
Also, when leaving property to more than one individual, the testator should indicate whether such a devise is “per stirpes” or “per capita”. With a per capita distribution, the property is left to the named beneficiaries only. However, with the per stirpes distribution, in the event one of the named beneficiaries passes, the deceased beneficiary’s share would pass to his or her living heirs (who are usually the children or the grandchildren).
When leaving specific devises to certain individuals or organizations, it is prudent to name an alternative beneficiary(ies) in the event that certain individual predeceases the testator or that certain named organization becomes defunct after the testator’s death.
It is also crucial for a will to contain a residual or a “catchall” clause. The testator should use this clause to specify who should get the property not otherwise conveyed by the will. Such a clause should also be used to list contingent beneficiaries in the event all the named beneficiaries predecease the testator.
When naming a personal representative, it is best to name at least one successor personal representative. It is not advisable to have two individuals act as co-personal representatives, no matter how close the two are at the time of the will execution, as death often brings out the worst in people, especially family members.
If the testator has minor child(ren), it is wise to nominate a guardian for that child(ren) in the event the testator is the sole parent of a minor child. Again, it is best to nominate a successor guardian in the event the testator’s first choice is incapacitated, is unable or unwilling to serve as such or is deceased.
A simultaneous death clause should also be part of every effective will. In the event a husband and wife die simultaneously or in a manner where there is no direct evidence to establish that the couple has died other than simultaneously, the testator can specify the spouse that would be deemed to be the survivor. Quite often a spouse with the smaller estate is chosen to be the “survivor” for tax purposes. It is also crucial to include language how such declaration by the testator is being made notwithstanding any provision of law to the contrary.
Otherwise, pursuant to Section 732.601(1), Florida’s Simultaneous Death Law, “[w]hen title to property or its [transfer] depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.” Section 732.601(1), Florida Statutes. In other words, pursuant to the Florida Probate Code, property of each person is disposed of as if each had survived the other.
Finally, it is best to have a self-proven will as a will that contains a self-proving affidavit may be admitted to probate without any further proof. Although a non-self-proving will is still a valid will in Florida, it will not be automatically admitted to probate. The will would have to be proved by an oath of a witness. Such proof of will process may become challenging if a witness has moved from the area, is hard to find, is incapacitated or deceased.
By including all the aforementioned provisions, a testator can rest assured that his or her wishes will actually be carried out.
On the other hand, to have a valid will in Florida, for one thing, the maker of the will must be “of sound mind”. See Section 732.501, Florida Statutes.
A Florida will must also be witnessed by at least two witnesses. One of the witnesses could actually be an “interested” witness. In other words, a Florida will that is witnessed by a beneficiary is still considered a valid will. See Section 732.504, Florida Statutes.
A Florida will must also be in writing and executed in a specific manner as prescribed by the Florida Probate Code and which is as follows:
- The testator must sign the will at the end or 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.
- The testator must sign the will in the presence of at least two attesting witnesses.
- The witnesses must also sign the will in the presence of the testator and in the presence of each other.
See Section 732.502, Florida Statues.
A handwritten will that is executed with these same statutory formalities will also be considered a valid will.
However, a handwritten will without witnesses (or a holographic will) and a verbal will (or a nuncupative will) are not recognized in Florida.
Although online searches can produce a variety of will templates and fill-in-the-blank forms that the testator may be tempted to download at no additional charge, it is always best to have an attorney prepare a will to ensure that the testator’s wishes are in fact carried out as intended.
Finally, it is important to keep in mind how a will is an ever evolving instrument to be reviewed on a regular basis. A will is not something that you prepare once in your life and then put it away and forget it as changed circumstances generally require a new will to be drafted to account for the changed circumstances.
For example, a birth, divorce, a death or simply changed family dynamics generally necessitate a new will. Such a new will would usually contain language how it revokes any and all prior will(s) and supersedes any such prior will(s). Consequently, it is imperative that a will is reviewed on a regular basis to ensure that it is still current and still reflects the testator’s wishes.