The most famous of all the estate planning documents for Floridians (and in other states) is the Florida last will and testament. This simple document concerns a deceased loved one’s last wishes. It involves a life legacy for many and can pass a fortune.
For all these reasons, and more, this simple document generates a lot of emotions for loved ones. The Florida last will and testament can also create a great amount of heartache if not executed properly. This articles explains in painstaking detail how to make sure your Florida last will and testament is properly prepared, signed, witnessed and notarized.
The Formalities of a Florida Last Will and Testament
A properly executed Florida last will and testament will have 3 parts, which are:
The formalities for our purposes concern the signing and attestation sections of the Florida last will and testament. We’re starting with the formalities because this is arguably the most important component of this document.
Why? you may ask…
Because a beautifully drafted Florida last will and testament without the formalities having been observed will be disallowed by the probate judge. In other words, it may not be worth the fine cotton paper that it’s printed on.
Depending upon your state of residence, the formalities for signing and attesting the last will may vary. What is fairly consistent is that generally 2 witnesses and a registered notary public are required. You’ll need to check your state laws to determine if the notary can and should serve as one of the witnesses.
A few states such as Florida require a formal approach in which all witnesses and the notary are in the same room, and the testator must observe the witnesses sign in the same room.
Other states follow a less formal approach, which is the modern trend called the “conscious presence test.” With this approach, the witnesses may sign outside the room if the testator is simply conscious of their presence while they sign the will.
There is also a “line of sight” test, which is slightly more stringent than the conscious presence test because the witnesses must sign the will in the testator’s line of sight.
So it is very important to understand your state’s statute of wills and the requirements for the signing and attestation of the last will. Many states now require that a last will either must or should be notarized, and this notary section is called a “self-proving affidavit.”
The self-proving affidavit will allow the Florida last will and testament to be admitted to the Florida probate court without having to locate the witnesses, and this is important because the last will may be around for a long time and witnesses tend to disappear.
Key Provisions in a Florida Last Will and Testament
There are certain key provisions of a Florida last will and testament which are typically found in the body of the last will itself. The document itself may “theoretically” include any provisions that the testator desires provided they are clear and pertain to the distribution of assets in order to be relevant.
For our purposes, key provisions are those that would cause the last will to be incomplete and perhaps flawed if they were omitted.
A summary of key provisions is as follows:
- Identification of the testator
- Identification of document as the last will and testament
- Appointment of the executor
- Distribution of personal property
- Bequests – defined as special or general
- Payment of estate expenses
- Distribution of residuary estate
Both 1 and 2 above, identification of the testator in Florida and Identification of document, are illustrated in the example above wherein Elvis is identifying himself as a citizen of Shelby County, TE, and the maker of his last will and testament.
In #3 the appointment of executor or personal representative in Florida is where the testator is appointing the individual to be responsible for “administering” the estate upon the testator’s death. The executor is responsible for the “business” side of administering the estate and, depending upon the estate and state laws (i.e. does Florida law apply?), they may need to hire a probate attorney in Florida to handle the probate administration.
Some states require that only attorneys can file probates while others allow limited exceptions to the rule in simple estate cases. An executor is responsible to the estate beneficiaries (heirs) and may be an heir also. A section in the Florida last will and testament for the distribution of personal property is also important, and many last wills simply state that the personal property may be distributed per a separate written memorandum.
Actual distributions of personal property may also be made directly in the last will using language like, “To Tommy, I give my authentic civil war era saber.”
Bequests (General or Special) are any distribution of property in the last will and may be either specific or general bequests depending upon the intent of the testator. If a gift is unique and the testator does not intend to give the value of the gift in the event that the gift disappeared, then a specific bequest would be used. In other words, if I were giving my 1969 Ferrari to my cousin Phil, as a specific bequest, and the car is not in my estate at death, the gift would be extinguished or “adeemed”. However, if that gift were a general bequest, the estate would be obligated to pay Phil the approximate value of the Ferrari from the remaining estate assets. Okay, I don’t have a 1969 Ferrari…
The payment of estate expenses is somewhat self-explanatory and concerns the creditors of the deceased testator (decedent). Generally, when a will is admitted to probate in Florida, notice will be published in the local paper and will also be sent to all known creditors, and they have 90 days to file a claim against the estate. Where there are adequate assets, creditor claims may be paid from the estate.
The residuary estate in Florida is whatever is left over in the estate after all specific bequests, general bequests and personal property distributions, and all other debts have been paid out by the estate. A will should always designate who is to receive the residuary of the estate in some fashion whether that is “to my heirs in equal shares per stirpes” or “to my two children, Tommy, and June.”
Another important point about the Florida last will and testament is that the state law of Florida will dictate how assets are distributed to a beneficiary or among a number of beneficiaries if the will doesn’t do so. This is where terms like “per stirpes” and “per capita” or “per capita with representation” become important. These rules are simply ways to divide the estate if there are groups of children, grandchildren and perhaps great-grandchildren.
In Florida per stirpes is the most traditional approach and essentially creates 1 share for each class of beneficiaries (children being one class, grandchildren being a second class and so on down the line).
Under a strict per stirpes approach, if Zeb dies unmarried with 3 children, Zach, Zena and Zoe, each child would receive a 1/3 share, and if Zoe predeceased Zeb and left 2 children (Zeb’s grandchildren), they would receive Zoe’s 1/3 share to divide equally.
Applying a per capita approach, Zach and Zena would each take an equal share in the estate and Zoe’s children would be cut out of the estate because only the highest class shares in the estate. Applying a per capita with representation approach would yield a similar result and allow Zoe’s children to share Zoe’s 1/3 share equally.
Where it gets more complicated is if all 3 of Zeb’s children were to predecease him, and let’s say Zach has 1 child, and Zena has 3 children, and Zoe has 2 children as per the example above. If this occurs, applying a strict per stirpes approach, the grandchildren would only be entitled to the 1/3 that their parents were entitled to and so Zach’s child would inherit 1/3 and Zena’s 3 children would share 1/3 as would Zoe’s 2 children.
With a per capita approach, all of the grandchildren would share an equal share in the estate so it would be divided equally into 6 shares. Applying a per capita with representation approach, the distinction is the result would be the same as per stirpes if only grandchildren survived, which would be an equal division of the estate. Applying a per capita with representation approach, if any of Zeb’s children survived then that child would receive a 1/3 share, and the balance of the estate would be shared equally among the grandchildren.
A key distinction between a per capita approach and a strict per stirpes approach is that with a per capita approach all of the grandchildren are cut off if one of Zeb’s children survives due to a member of a higher class having survived. Another key distinction is that under a strict per stirpes approach, the members of the same class of grandchildren will not be awarded an equal share even if none of the children (higher class) survive because their share will always be based upon that of the higher class (their parents).
Florida Last Will and Testament TYPES
To make this all just a tad bit more exciting, there are a number of different TYPES of Florida last will and testament documents to remember such as a Florida pour over will, Medicaid will, and a Florida will that includes a testamentary trust. Guardianship provisions are also included in Florida wills for important reasons to be discussed. Holographic wills (or handwritten) wills aren’t allowed in Florida but may be recognized if executed in another state that allows them.
All of these “types” are enhancements or upgrades (to use a car analogy) to the standard last will model that we’ve been discussing. So all of the formalities and fundamental terms will apply unless specified otherwise.
A pour over will in Florida is used when there is a revocable trust (hereafter the “trust”), so this should tie together nicely with the discussion to come shortly about revocable living trust planning. Think of this as a pitcher (of water) pouring the estate assets into the trust.
So this kind of will, instead of making the distributions to a single beneficiary or beneficiaries (remember specific and general bequests), will generally make one distribution into the Trust. This type of will requires all of the other key provisions mentioned in this chapter but is unique in its function because it essentially transfers the duty to distribute the estate assets to the trustee of the trust rather than allowing the probate judge to do so via the last will under the charge of the personal representative.
Holographic wills are not allowed in some states but are accepted in others. A holograph is essentially a “handwritten will”. Generally, the requirements are that it be in the testator’s own handwriting, signed and dated by the testator. Another implied requirement is that it can be identified as a will by some descriptive language such as “This is my last will” or “Upon my death I bequeath my assets to…” If all this can be verified, a holograph can be admitted to the probate court as a valid will. For many reasons, this is not the recommended approach to estate planning, but it may be useful if death is imminent and only a pen and paper are handy.
A Florida last will and testament that includes a testamentary trust is a last will and testament in Florida that adds a trust fund for children or other beneficiaries. This type of Florida last will and testament creates a trust that becomes effective upon the death of the testator, and this is distinct from a Florida revocable living trust, which becomes effective during the lifetime of the settlor (the person who sets up the trust). This type of Florida last will and testament is generally longer and more involved than the others because the provisions of the trust, such as the appointment of a trustee and other requirements of the trust, will be included in the will.
A Florida Medicaid will creates a specific type of testamentary trust and is not a well-known concept among the general public. This type is a strategy for Florida Medicaid planning, which will be discussed in more detail in the Chapter 3. Suffice to say it is a last will that creates a supplemental trust fund in order to allow a spouse who is receiving Medicaid benefits for long-term medical care to continue eligibility after a spouse passes away. This unique last will accomplishes this goal by allowing the estate assets to be held in a separate supplemental fund to provide for the surviving spouse’s incidentals.
When a Will in Florida is Challenged [Undue Influence]
One of the things to watch or for when creating your last will is whether it will be challenged by an aggrieved beneficiary. In addition to problems with formalities, discussed above, one of the key ways that wills may be challenged, although not often successfully, is by alleging that a change or the will itself was prompted by undue influence. To make this kind of claim stick, a few factors need to be present which you should be aware of summarized as follows:
- A will recently changed by…
- An elderly or infirmed person
- With diminished capacity
- Some indication that the testator’s free will was subject to the influence.
The courts look at undue influence with a fair amount of scrutiny, and perhaps rightfully so, because people are free to change their will and do what makes them happy, in general. However, if the above factors are present and backed by evidentiary proof that the testator was taken advantage of and whose free will was intentionally manipulated, the last will could be invalidated.
Changing a Florida Will [Codicil or Replacement]
If a person wants to update a last will in Florida, it does NOT necessary need to be redone. A codicil to the will may be used to make the change, provided it is done with the same formalities of the last will discussed above. The easiest way to think of a codicil is like an amendment to a contract LIKE an amendment to a trust in Florida, which is used to substitute a portion of the contract for something new. On the downside, codicils or often viewed by professionals as confusing and thus it isn’t uncommon for estate planning attorneys to suggest replacing the entire will rather than doing a codicil.
There you have it…up to date guidance concerning how to make sure that your last will and testament in Florida is valid and enforceable.
Of course, estate planning in Florida should involve much more than a simple will for most people, particularly those needing estate planning for high net worth estates in Florida. You should determine if a Florida revocable living trust makes sense AND if you should also explore a solid Florida asset protection plan. If you own a business, you may have a need for Florida business continuity succession planning. Call us and get the information to create a complete estate plan for yourself and your loved ones.
Steve Gibbs, Esq.